Howard v Stapleton's Quality Meats

[2016] FWC 2514

DECISION

Fair Work Act 2009
s.365—General protections
Cody Nathan Howard
v
Stapleton’s Quality Meats
(C2015/7413)
DEPUTY PRESIDENT KOVACIC	CANBERRA, 20 APRIL 2016

Application to deal with contraventions involving dismissal - invalid application - application

dismissed.

[1] Mr Cody Nathan Howard (the Applicant) made an application which was received by

the Fair Work Commission (the Commission) on 18 November 2015 under s.365 of the Fair

Work Act 2009 (the Act) alleging that he had been dismissed by Stapleton’s Quality Meats

(the Respondent) in contravention of the general protections provisions in the Act.

Mr Howard’s application was incomplete as it was not accompanied by payment of the

required application fee, or by a request to have the application fee waived.

[2] On 23 November 2015, the Commission attempted to contact Mr Howard via

telephone, however the mobile number he provided was disconnected. Subsequently an

email was sent asking Mr Howard to provide the Commission with either a completed

waiver form or the application fee within 14 days or the application may be dismissed.

[3] The Commission subsequently attempted to contact Mr Howard on a number of

occasions, i.e. 23 November 2015, 11 January 2016, 26 February 2016 and 23 March 2016

by telephone, letter and email regarding his application and incomplete payment. On each

occasion it was foreshadowed that Mr Howard’s application may be dismissed unless he

completed the waiver form or paid the lodgement fee. Despite these repeated attempts to

contact Mr Howard the Commission has received no completed waiver form or payment of

the application fee.

[4] Section 587 of the Act provides:

“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.
[2016] FWC 2514
Note: For another power of the FWC to dismiss an application for a remedy for
unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(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:

(c) on its own initiative; or
(d) on application.”
[5] In relation to an application made pursuant to s.365 of the Act, s.367 provides:
“367 Application fees

(1) The application must be accompanied by any fee prescribed by the regulations.
(2) The regulations may prescribe:

(a) a fee for making an application to the FWC under section 365; and
(b) a method for indexing the fee; and
(c) the circumstances in which all or part of the fee may be waived or
refunded.”

[6] Mr Howard has failed to comply with s.367(1) of the Act. Accordingly, his

application has not been made in accordance with the Act and is therefore dismissed pursuant

to ss.587(1)(a) of the Act. An order to that effect will be issued with this decision.

Printed by authority of the Commonwealth Government Printer

Cody Nathan Howard filed an application under section 365 of the Fair Work Act 2009, alleging that he was dismissed by Stapleton’s Quality Meats in contravention of the general protections provisions. The application was received by the Fair Work Commission on 18 November 2015, but it was incomplete as it was not accompanied by the required application fee or a request for the fee to be waived. Despite several attempts to contact Mr Howard by telephone, letter, and email, the Commission did not receive the necessary fee or a completed waiver form. The Commission notified Mr Howard that his application may be dismissed if the fee was not paid or the waiver form was not submitted within 14 days.

The legal issues before the Fair Work Commission were whether the application could be dismissed under section 587 of the Fair Work Act for being incomplete and whether the application fee was mandatory under section 367 of the Act. Section 367(1) of the Act mandates that an application under section 365 must be accompanied by any prescribed fee. Since Mr Howard's application did not include the required fee, it did not comply with the Act. Consequently, the Commission had the authority to dismiss the application under section 587(1)(a) of the Act, which allows for the dismissal of an application that is not made in accordance with the Act.

The Fair Work Commission found that Mr Howard's application was not in compliance with the Act because it lacked the prescribed application fee. Therefore, the application was dismissed. The Commission highlighted that despite repeated attempts to contact Mr Howard to rectify the issue, no action was taken by him to address the incomplete application. As a result, the application was dismissed pursuant to section 587(1)(a) of the Act, and an order to that effect will be issued with this decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

(a)	is frivolous or vexatious; or
(b)	has no reasonable prospects of success.