Jake Lawrence v Gemlife Administration Pty Ltd
[2023] FWC 3372
•15 DECEMBER 2023
| [2023] FWC 3372 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Jake Lawrence
v
Gemlife Administration Pty Ltd
(C2023/7468)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 15 DECEMBER 2023 |
Application to deal with contraventions involving dismissal – application dismissed.
On 28 November 2023, Mr Jake Lawrence (the Applicant) made an application under s.365 of the Fair Work Act 2009 (Cth) (the Act). The Applicant alleges that he was dismissed in contravention of the general protection provisions in Part 3-1 of the Act.
The application was not accompanied by the fee prescribed by the Fair Work Regulations 2009 (Cth) (the Regulations) or by a completed application for waiver of the lodgement fee (waiver application).
On 3 December 2023, the Commission emailed correspondence to Mr Lawrence’s nominated email address advising that his application required payment of the filing fee or a completed waiver form 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.”
An SMS notification was also sent to Mr Lawrence’s nominated telephone number on 4 December 2023. The SMS advised Mr Lawrence’s to take action in compliance with the email from the Commission regarding payment of the application fee.
On 7 December 2023, the Commission emailed correspondence to Mr Lawrence’s nominated email address reminding him that his application required payment of the filing fee or a completed waiver form if he wished to proceed with the application. The correspondence instructed the Applicant 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.”.
On 12 December 2023, the Commission attempted to contact Mr Lawrence on his nominated telephone number to discuss payment of the required fee however Mr Lawrence did not answer the call. A voicemail message was left requesting Mr Lawrence to pay the filing fee or complete a waiver form if he wished to proceed with the application. A final attempt to contact Mr Lawrence on his nominated telephone number was made by the Commission on 13 December 2023 to obtain payment or a completed waiver form. Mr Lawrence advised that he would call commission before the end of 13 December 2023 to pay the required fee.
To date, the Applicant has not paid the lodgement fee or filed a completed waiver application.
Legislative framework
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.
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
In considering all the circumstances, I am satisfied that the application form in question was not accompanied by the prescribed fee nor was a fee waiver sought. Accordingly, 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.
Despite the attempts by the Commission to contact him, 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 am satisfied that it is appropriate in all the circumstances to dismiss the purported application.
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] PR769485.
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