Jarrad Lucas Dwyer v Br & I Pty Ltd

[2023] FWC 171

[2023] FWC 171

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Jarrad Lucas Dwyer
v

Br & I Pty Ltd

(C2022/6172)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 20 JANUARY 2023

Application to deal with contraventions involving dismissal – application dismissed.

1. Jarrad Lucas Dwyer (applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that he was dismissed 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 filing fee (waiver application). The applicant has not rectified this deficiency, notwithstanding correspondence from the Commission alerting him to the issue. I have decided to dismiss the application for the following reasons.

Context

1. The application was filed by post on 7 September 2022.

1. On 8 September 2022, the Commission left a voicemail with the applicant requesting a return call regarding payment of the filing fee. An SMS was sent to the applicant’s nominated telephone number to the same effect. The Commission also posted information to the applicant on 8 September 2022 with details explaining how to pay the filing fee or make a waiver application. The letter put the applicant on notice that the matter was at risk of being dismissed in the absence of compliance.

1. On 14 September 2022, the applicant called the Commission. The applicant refused to open the 8 September 2022 letter from the Commission on the basis of concerns with the capitalisation of the letters on the envelope. The applicant also stated words to the effect that he was not making an application but rather a claim or contract, and he would not pay the filing fee until the Commission confirmed acceptance of his contract. The Commission advised the applicant that he was required to pay the filing fee or make a waiver application if he wanted the application to proceed.

1. On 23 September 2022, the Commission received an envelope from the applicant which contained illegible handwritten material. On 30 September 2022, the Commission’s 8 September 2022 correspondence was received by the Commission, marked “returned to sender” and stating “Jarrad lucas :Dwyer cannot open this article.”

1. On 5 October 2022, the Commission left a voicemail with the applicant requesting payment of the filing fee and advising that in the absence of payment, the application may be dismissed. The applicant returned the call seeking to speak with the specific Commission employee who left the voicemail, who was at the time unavailable. The applicant said he would call again later but did not do so.

1. On 7 October 2022, the applicant sent a lengthy email to the Commission. The email again raised concerns with the capitalisation of letters and suggested that the application should be referred to a Member.

1. On 19 January 2023, the Commission sent an email to the applicant’s email address, being the email account from which the applicant communicated with the Commission on 7 October 2022. The Commission advised the applicant that his application would be dismissed by close of business the following day for failure to pay the filing fee.

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 $77.80. 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. The applicant has neither paid the filing fee nor 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 by various methods on multiple occasions. While the applicant refused to open the Commission’s 8 September 2022 correspondence which contained details explaining how to pay the filing fee or make a waiver application, I am satisfied that such information was properly served upon the applicant at the time that the correspondence was addressed and posted to the applicant’s nominated postal address, with such service having been effected at the time that the Commission’s correspondence was delivered in the ordinary course of post.[1]

1. Further and in any case, the applicant was advised of the requirement to pay the filing fee or seek a fee waiver by means other than by post, as follows:

(a)   a voicemail left on the applicant’s nominated telephone number on 8 September 2022;

(b)   a SMS notification sent to the applicant’s nominated telephone number on 8 September 2022;

(c)   a telephone call with the Commission on 14 September 2022;

(d)   a voicemail left on the applicant’s nominated telephone number on 5 October 2022; and

(e)   an email sent to the applicant’s email address on 19 January 2023, being the email account from which the applicant communicated with the Commission on 7 October 2022.

1. Accordingly, I am satisfied that the applicant was adequately informed by the Commission of the requirement to pay the filing fee or seek a fee waiver in respect of his application.

1. In these circumstances, in the absence of payment of the filing fee or an application for a fee waiver by the applicant, 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

[1] Acts Interpretation Act 1901 (Cth), s 29(1)

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