Iefata Leuma Mano v Nichols Poultry Pty Ltd

[2019] FWC 3035

[2019] FWC 3035

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Iefata Leuma Mano
v
Nichols Poultry Pty Ltd
(C2019/1846)

DEPUTY PRESIDENT KOVACIC CANBERRA, 3 MAY 2019

Application to deal with contraventions involving dismissal.

[1] Mr Iefata Leuma Mano (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 20 March 2019 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Nichols Poultry Pty Ltd (the Respondent) in contravention of the general protections provisions in the Act. Mr Mano’s application was incomplete in that no payment or application for waiver of the lodgement fee was completed.

[2] On 22 March 2019, the Commission contacted the Applicant to advise him that the lodgement fee remained unpaid. The Applicant did not answer the call and a voicemail was left requesting that he contact the Commission to either pay the filing fee or submit a fee waiver form. The Commission subsequently emailed a letter to the Applicant and the Applicant’s representative with a copy of the waiver form.

[3] On 27 March 2019, the Commission telephoned the Applicant who advised he would fill out the waiver application and return it to the Commission.

[4] On 10 April 2019, the Commission telephoned the Applicant and a voicemail message was left asking the Applicant to contact the Commission.

[5] On 17 and 24 April 2019, the Commission telephoned the Applicant. A message was left at his home on both occasions asking the Applicant to contact the Commission.

[6] Also on 17 April 2019, the Commission forwarded email correspondence to the Applicant which foreshadowed that his application may be dismissed unless he completed either the waiver form or paid the lodgement fee. Despite these repeated attempts to contact Mr Mano, the Commission has received no completed waiver form or lodgement fee payment.

[7] No correspondence has been received from the Applicant or the Applicant’s representative since 24 April 2019.

[8] 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.

(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.”

[9] 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.”

[10] Mr Mano 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 s.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

<PR707931>