Haoran Xia v Harcor Security Seals Pty Ltd

[2022] FWC 1469

[2022] FWC 1469

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Haoran Xia
v

Harcor Security Seals Pty Ltd

(C2022/2390)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 15 JUNE 2022

Application to deal with contraventions involving dismissal

1. Mr Haoran Xia (applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that he was dismissed by Harcor Security Seals Pty Ltdin contravention of the general protection provisions in Part 3-1 of the Act.

1. The application was not accompanied by the fee prescribed by the Fair Work Regulations 2009 (Cth) (regulations) or by a completed application for waiver of the lodgement fee (waiver application). The applicant has not responded to correspondence from the Commission alerting him to this deficiency, nor has the deficiency been rectified. I have decided to dismiss the application for the following reasons.

Context

1. The application was received by the Commission on 13 April 2022.

1. On 14 April 2022 the Commission telephoned the applicant and left a voicemail advising the applicant that his application fee remained unpaid and he had not made a waiver application. A letter was sent by email to the applicant’s preferred email address the same day which explained how to pay the application for and make a waiver application. It also stated as follows:

“You have until Thursday, 28 April 2022 to pay the fee or apply for a waiver.

If you don’t do this, your application may be dismissed….”

(emphasis omitted)

1. On 29 April 2022, the Commission telephoned the applicant again as the applicant had not paid the application fee or made a waiver application. A voicemail was left on the applicant’s mobile phone advising him that he had not paid the fee or made a waiver application and as such the matter was at risk of being dismissed.

1. On 5 May 2022, the Commission sent a letter to the applicant. It provided details of how to pay the application fee or make a waiver application. Further, it emphasised to the applicant that if he did not action the request then his application would be referred for dismissal.

1. The Commission called and left another voicemail with the applicant on 27 May 2022. The applicant was advised that his application would be dismissed without further notice for failure to pay the application fee or make a waiver application. An email was also sent to the applicant to the same effect. Attached to that email was the instructions sent to the applicant on 14 April 2022.

1. To date, the applicant has not paid the lodgement fee or filed a completed waiver application.

Legislative framework

1. In relation to an application made pursuant to s 365 of the Act, s 367(1) provides that the application “must be accompanied by any fee prescribed by the regulations.” At the time the application was made, the regulations prescribed a fee of $74.90. The regulations also allow for an application to be made for the fee to be waived.

1. Section 587 of the Act provides as follows:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

…

(2) Despite paragraphs (1) (b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

(emphasis added)

Consideration and conclusion

1. The applicant has neither paid the lodgement fee nor sought a fee waiver. Accordingly, the application is not made in accordance with s 367 of the Act.

1. The applicant has taken no action to address the deficiency despite being notified of it by the Commission on multiple occasions. In these circumstances, I have decided to exercise my discretion to dismiss the application in accordance with s 587(1)(a) of the Act.

1. The application is dismissed.

DEPUTY PRESIDENT

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