James Collins v Modern Transport Engineers Australia Pty Ltd

[2022] FWC 2049

[2022] FWC 2049

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

James Collins
v

Modern Transport Engineers Australia Pty Ltd

(C2022/3503)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 5 AUGUST 2022

Application to deal with contraventions involving dismissal – application dismissed.

1. Mr James Collins (applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that he was dismissed by Modern Transport Engineers Australia Pty Ltd in contravention of the general protection provisions in Part 3-1 of the Act.

1. The application was not accompanied by the fee prescribed by the Fair Work Regulations 2009 (Cth) (regulations) or by a completed application for waiver of the lodgement fee (waiver application). The applicant has not responded to correspondence from the Commission alerting him to this deficiency, nor has the deficiency been rectified. I have decided to dismiss the application for the following reasons.

Context

1. The application was received by the Commission on 14 June 2022. The application was deficient in that it was not accompanied by payment of the application fee, and it was missing essential information.

1. On 15 June 2022, the Commission telephoned the applicant and left a voicemail requesting a return call in relation to the non-payment of the filing fee. The Commission also sent a letter by email to the applicant with information on how to pay the filing fee and how to make a waiver application. The letter stated as follows:

“If we don’t hear from you by 29 June 2022 with the information we need, we may

dismiss your application. This means we will close your case.”

(emphasis omitted)

1. The applicant called the Commission twice on 17 June 2022. In summary, the applicant advised he was suffering financial hardship and intended to make a waiver application. The applicant also provided the information that had been omitted from his application form.

1. On 8 July 2022, the Commission left two voicemails with the applicant requesting the waiver application or alternatively payment of the application fee.

1. On 13 July 2022, the Commission left a further voicemail advising the applicant that it was yet to receive a waiver application, and the application was at risk of being dismissed if the filing fee was not paid within seven days. A letter was also sent to the applicant advising how to pay the filing fee or make a waiver application. The letter stated:

“If we don’t hear from you by 20 July 2022 with the information we need, we may dismiss your application. This means we will close your case.”

(emphasis omitted)

1. In the absence of a response from the applicant, on 21 July 2022 the Commission made another call to the applicant. A voicemail was left advising that the application may be dismissed.

1. The Commission left a further voicemail with the applicant on 2 August 2022 advising that the application was being considered for dismissal. An email was also sent to the applicant on 2 August 2022 advising that dismissal would proceed without further notice if the applicant did not pay the filing fee or lodge a waiver application by close of business on 4 August 2022.

1. To date, the applicant has not paid the filing fee or filed a completed waiver application.

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 $74.90. 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.

(emphasis added)

Consideration and conclusion

1. The applicant has neither paid the filing fee or sought a fee waiver. Accordingly, the application is not made in accordance with s 367 of the Act.

1. 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 have decided to exercise my discretion to dismiss the application in accordance with s 587(1)(a) of the Act.

1. The application is dismissed.

DEPUTY PRESIDENT

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