Harry Treloar v The Tax Institute

[2023] FWC 146

[2023] FWC 146

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Harry Treloar
v

The Tax Institute

(C2022/6289)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 19 JANUARY 2023

Application to deal with contraventions involving dismissal – application dismissed.

1. Harry Treloar (applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that they were dismissed by The Tax Institute in 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 them 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 made on 13 September 2022, being filed by the applicant’s representative. The Commission emailed correspondence to the applicant’s nominated email address advising that the application required payment of the filing fee or a completed waiver form if they wished to proceed.

1. A text message was also sent to the applicant’s nominated telephone number on 13 September 2022. The text message advised the applicant to take action in compliance with the email from the Commission regarding payment of the filing fee.

1. The applicant sent correspondence in response to the Commission on 13 September 2022, advising that $99 had been paid to their representative. The Commission responded on 14 September 2022, notifying the applicant that payment had not been made to the Commission.

1. The Commission sent further correspondence by email to the applicant on 26 September 2022. The email advised the applicant that the filing fee remained unpaid. The correspondence provided instructions on how to pay the filing fee or make a waiver application, and put the applicant on notice that the application may be dismissed in the absence of compliance.

1. The Commission telephoned the applicant on 27 September 2022. The call was not answered. A voicemail message was left advising the applicant that payment of the filing fee remained outstanding.

1. A call was also made on 28 September 2022 to the applicant’s representative to obtain payment. A voicemail was left, in which the Commission advised that the filing fee remained unpaid and the application was at risk of dismissal.

1. A further call was made to the applicant on 28 October 2022. A voicemail was left advising the application would be considered for dismissal.

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 $77.80. 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.

Consideration and conclusion

1. The applicant has neither paid the lodgement fee or 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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