Ivan Simic v Tomorrow Homes

[2024] FWC 963

[2024] FWC 963

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Ivan Simic
v

Tomorrow Homes

(C2024/1222)

DEPUTY PRESIDENT CLANCY MELBOURNE, 23 APRIL 2024

Application to deal with contraventions involving dismissal

1. On 26 February 2024, Mr Ivan Simic made an application under s.365 of the Fair Work Act 2009 (Cth) (the Act). Mr Simic alleges that he was dismissed in contravention of the general protection provisions in Part 3-1 of the Act.

1. Mr Simic’s application was not accompanied by the application fee prescribed by the Fair Work Regulations 2009 (Cth) (Regulations). Nor was a completed Form F80 – Application for waiver of the application fee (Form F80) attached.

1. On 28 February 2024, the Commission emailed correspondence to Mr Simic’s nominated email address advising him that his application required payment of the application fee or a completed Form F80 if he wished to proceed with the application. The email further stated as follows:

“Please pay the application fee within 7 calendar days (or apply to have the fee waived) so we can progress your case.

If you don’t make payment within 7 days your application may be dismissed.”

1. An SMS notification was also sent to Mr Simic’s nominated telephone number on 29 February 2024. The SMS advised Mr Simic to take action in compliance with the email from the Commission regarding payment of the application fee.

1. On 1 March 2024, the Commission emailed correspondence to Mr Simic’s nominated email address reminding him that his application required payment of the application fee or a completed Form F80 if he wished to proceed with the application. The correspondence instructed Mr Simic on how to pay the application fee or make a waiver application and further stated as follows:

“Reminder: You need to pay the application fee (or apply to have the fee waived) or your application may be dismissed.”.

1. On 7 and 21 March 2024, the Commission attempted to call Mr Simic on his nominated telephone number. The calls were not answered, and, on both occasions, an automated recording advised that Mr Simic’s nominated telephone number could not accept inbound calls. There was no facility to leave voicemail messages.

1. On 21 March 2024, the Commission emailed correspondence to Mr Simic’s nominated email address informing him that if payment or a completed Form F80 was not received by 25 March 2024, his matter may be at risk of being dismissed. To date, Mr Simic has not paid the application fee or filed a completed Form F80.

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 $83.30. 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. In considering all the circumstances, I am satisfied that the application form in question was not accompanied by the prescribed fee and the application has not been made in accordance with the Act. Given the absence of the fee payment, it is likely that there is no valid application before the Commission[1] and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act.

1. Despite the numerous attempts by the Commission to contact Mr Simic, the reminders, and multiple requests, Mr Simic has responded. In these circumstances, I am satisfied that it is appropriate to dismiss the purported application.

1. The application is dismissed. An Order[2] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].

[2] PR773475

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<PR773474>