James Dawes v Croaker's Insurance Pty Ltd Summary

[2022] FWC 323

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

James Dawes

Croaker’s Insurance Pty Ltd

(C2022/410)

DEPUTY PRESIDENT MILLHOUSE

MELBOURNE, 16 FEBRUARY 2022

Application to deal with contraventions involving dismissal – application dismissed.

Mr James Dawes (applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that he was dismissed by Croaker's Insurance Pty Ltd 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 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

The application was received by the Commission on 10 January 2022. On 11 January 2022, the Commission telephoned the applicant. A voice message was left requesting a return call as the application was made without payment of the required lodgement fee. Correspondence was also sent by the Commission to the applicant advising that he had until 25 January 2022 to pay the lodgement fee or seek a fee waiver, or his application may be dismissed.

On 25 January 2022, the Commission telephoned the applicant. A voice message was left requesting an urgent return call as the lodgement fee remained unpaid and the application may be dismissed.

In the absence of a response from the applicant, on 1 February 2022 the Commission again telephoned the applicant. A voice message was left requesting a return call as the lodgement fee remained unpaid. The Commission also wrote to the applicant by email advising that he had seven days to pay the application fee or file a waiver application, or his application may be dismissed.

On 14 February 2022, the Commission telephoned the applicant. A voice message was left advising that the application would be referred to a Member, as the lodgement fee remained unpaid and the applicant had not sought a fee waiver.

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 $74.90. 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.

(emphasis added)

Consideration and conclusion

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

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.

The application is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In James Dawes v Croaker's Insurance Pty Ltd, the applicant, James Dawes, sought to lodge an application under section 365 of the Fair Work Act 2009 (Cth) against his former employer, Croaker's Insurance Pty Ltd. Dawes alleged 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 required lodgement fee, nor had a waiver application been completed. The Fair Work Commission dismissed the application for failure to comply with the legislative requirements regarding the lodgement fee.

The legal issue before the Deputy President was whether the application could be dismissed due to the absence of the required lodgement fee and the lack of a completed waiver application. Section 367(1) of the Act stipulates that an application must be accompanied by any fee prescribed by the regulations. The regulations prescribed a fee of $74.90 at the time the application was made. The applicant was notified multiple times by the Commission to address this deficiency but failed to do so. The court had to determine whether the application could be dismissed under section 587(1)(a) of the Act for not being made in accordance with the Act.

The Deputy President considered that the application was not made in accordance with section 367 of the Act due to the absence of the lodgement fee and the lack of a completed waiver application. Despite multiple notifications from the Commission, the applicant did not take any action to rectify the deficiency. The Deputy President exercised the discretion to dismiss the application under section 587(1)(a) of the Act, finding that the application had no reasonable prospects of success and was not made in accordance with the Act. The application was dismissed.

No specific orders were made as the application was dismissed without further consideration of the merits.

James Dawes v Croaker's Insurance Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established