Howard v Stapleton's Quality Meats

[2016] FWC 2514

[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.

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