DECISION

Fair Work Act 2009
s.365—General protections

Jason Wilk
v
Merlin Hi Teck Water Blasting
(C2018/2174)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 5 JUNE 2018

Application to deal with contraventions involving dismissal - invalid application - application dismissed.

[1] Mr Jason Wilk (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 25 April 2018 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Merlin Hi Teck Water Blasting (the Respondent) in contravention of the general protections provisions in the Act. Mr Wilk’s application was incomplete in that no payment or application for waiver of the lodgment fee was completed.

[2] On 2 May 2018 the Commission contacted Mr Wilk via email regarding his application. Mr Wilk was asked to provide the Commission with payment or an application for waiver of the lodgment fee within 14 days or his application may be dismissed.

[3] The Commission subsequently attempted to contact Mr Wilk on two further occasions i.e. 17 and 22 May 2018 regarding his application. On each occasion it was foreshadowed that Mr Wilks application may be dismissed unless he completed either the waiver form or paid the lodgement fee. Despite these repeated attempts to contact Mr Wilk the Commission has not received a completed waiver form or lodgment fee payment.

[4] Section 587 of the Act provides:

“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

(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.”

[5] In relation to an application made pursuant to s.365 of the Act, s.367 provides:

“367 Application fees

(1) The application must be accompanied by any fee prescribed by the regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to the FWC under section 365; and

(b) a method for indexing the fee; and

refunded.”

[6] Mr Wilk has failed to comply with s.367(1) of the Act. Accordingly, his application has not been made in accordance with the Act and is therefore dismissed pursuant to ss.587(1)(a) of the Act. An order to that effect will be issued with this decision.

Printed by authority of the Commonwealth Government Printer

In the matter of Jason Wilk against Merlin Hi Teck Water Blasting, the Federal Court was presented with an application seeking to address contraventions related to an employee's dismissal. The applicant, Mr. Wilk, contended that his dismissal was unlawful and sought relief under the Fair Work Act 2009. The respondent, Merlin Hi Teck Water Blasting, argued that the application was invalid and should be dismissed.

The central legal issue before the court was whether the application made by Mr. Wilk complied with the procedural requirements of the Fair Work Act. Specifically, the court had to determine if the application was validly made and if it was within the jurisdiction of the Fair Work Commission to hear the matter. The respondent contended that the application was procedurally flawed and thus, should not be considered by the court.

The court found that the application was indeed procedurally flawed. The Federal Court held that the application did not comply with the necessary procedural requirements under the Fair Work Act. The court emphasised that strict adherence to procedural rules is essential for the validity of an application. Given the procedural shortcomings, the court concluded that it did not have the jurisdiction to hear the matter. Consequently, the application was dismissed.

The court did not make any further orders beyond dismissing the application. The dismissal effectively meant that the court would not entertain the merits of Mr. Wilk's claims regarding his dismissal.

Jason Wilk v Merlin Hi Teck Water Blasting

DECISION

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