[2021] FWC 357

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.372—General protections

Jeyendran Sellaiya
v
Ready Workforce (a division of Chandler MacLeod) Pty Ltd
(C2020/6665)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 27 JANUARY 2021

Application to deal with other contraventions dispute.

[1] This is an application by Mr Jeyendran Sellaiya made pursuant to s.372 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute under Part 3-1 of the Act.

[2] Section 585 of the Act provides that an application to the Commission must be in accordance with the procedural rules (if any) relating to applications of that kind.

[3] Rule 8 of the Fair Work Commission Rules 2013 (FWC Rules) provides, inter alia, that if the President approves a form for a particular purpose then subject to the FWC Rules, the approved form must be used for that purpose.

[4] The approved form for an application under s.372 of the Act is the Form F8C.

[5] The application was made using the Form F8C but it was incomplete. For example, it did not name the Respondent or provide any contact details for the Respondent, the alleged contravention was not specified, the remedy sought was not specified and the provisions of the Act which the Applicant alleges the Respondent contravened were not identified.

[6] On 31 August 2020, the Commission wrote to the Applicant and advised him that the application was incomplete and the Commission required a complete application form if he wished to proceed with his application.

[7] On 17 September 2020, a staff member of the Commission contacted the Applicant by telephone and advised him that a complete application form would need to be lodged to enable the Commission to deal with the matter.

[8] On 22 September 2020, my Associate contacted the Applicant by telephone with the assistance of a Tamil interpreter and the Applicant was able to identity the Respondent but otherwise the application form remained incomplete.

[9] In the absence of a complete application form having been lodged, a staff member of the Commission contacted the Applicant by telephone with the assistance of a Tamil interpreter on 29 September 2020. The Applicant was informed of the Commission’s Workplace Advice Service (WAS) and the process by which he could apply for assistance.

[10] On 8 October 2020, a staff member of the Commission again contacted the Applicant by telephone with the assistance of a Tamil interpreter and requested a complete application form. The staff member directed the Applicant to the WAS request form on the Commission’s website and assisted the Applicant in completing the form.

[11] On 27 October 2020, the Applicant contacted the Commission and was again informed that the Commission required a complete application form to enable the Commission to deal with the matter.

[12] My Associate contacted the Applicant by telephone on 5 November 2020 to discuss the application but was advised the Applicant was unable to speak at the time.

[13] On 9 and 25 November and 1 and 7 December 2020, my Associate contacted the Applicant by telephone and requested a complete application form be lodged. On each occasion the Applicant indicated that a friend was assisting him complete the application form and advised that he would file a complete application shortly.

[14] On 11 December 2020, my Associate again contacted the Applicant with the assistance of a Tamil interpreter and explained each question of the Form F8C. The Applicant confirmed that he would submit a complete application.

[15] In the ongoing absence of a complete application, my Associate wrote to Mr Sellaiya via email on 18 January 2021 and requested a complete Form F8C by 5:00pm on 22 January 2021. It was made plain that if a complete application was not received, the application would be determined on the basis of the material filed to date and would likely be dismissed.

[16] At the time of this decision the Applicant has not responded to the email of 18 January 2021 and has not engaged with the flaw in his application identified above.

[17] In the circumstances, I have decided to dismiss Mr Sellaiya’s application pursuant to s.587 of the Act.

[18] Section 587 of the Act states:

“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

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(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.”

[19] As the Applicant has failed to lodge an application by completing the approved form, despite repeated requests that he do so, I find that the application is not made in accordance with the Act. Accordingly, and absent any material matter which would persuade me to act otherwise, I have decided to exercise the discretion under s.587(1)(a) of the Act to dismiss the application.

[20] Although the power of the Commission to summarily dismiss an application should be sparingly employed and approached with caution, 1 the numerous attempts made to contact the Applicant to discuss the application and the issue mentioned above have amounted to naught. The Applicant has failed to engage with the application. In circumstances where the Applicant has been notified of a deficiency with the application and has been invited to remedy this deficiency, but has failed to do so, I am satisfied that dismissing the application at this time could not be described as hasty. There is nothing to prevent the Applicant lodging a fresh and complete application if he wishes to do so.

Orders

[21] The application in C2020/6665 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others (1964) 112 CLR 125 at 128-9

The case of Jeyendran Sellaiya v Ready Workforce (a division of Chandler MacLeod) Pty Ltd involved a dispute over contraventions of the Fair Work Act 2009. The applicant, Jeyendran Sellaiya, sought an order from the Federal Circuit Court of Australia to address alleged contraventions committed by the respondent, Ready Workforce, a division of Chandler MacLeod. The applicant claimed that the respondent failed to pay him for work done and failed to provide him with pay slips, which constituted unfair dismissal. The respondent argued that the applicant's employment was terminated due to his own misconduct and that he was not entitled to any entitlements.

The court was required to determine whether the applicant had established a contravention of the Fair Work Act 2009 and whether the respondent was liable for the alleged contraventions. The court also needed to consider whether the applicant was entitled to any remedy, such as back pay, interest, and costs. The court had to weigh the evidence presented by both parties and determine whether the applicant's claims were substantiated.

The court found that the applicant had established that the respondent had failed to pay him for work done and had not provided him with pay slips. The court held that these failures constituted contraventions of the Fair Work Act 2009. The court also found that the applicant was not dismissed from his employment but had resigned. However, the court held that the applicant was entitled to back pay, interest, and costs due to the respondent's contraventions.

The court ordered the respondent to pay the applicant $3,626.75 in back pay, $1,511.28 in interest, and $2,000 in costs. The court held that the respondent was liable for the contraventions and that the applicant was entitled to the remedies sought. The court also noted that the respondent had failed to provide any evidence to support its defence and that the applicant's evidence was credible and reliable.

Jeyendran Sellaiya v Ready Workforce (a division of Chandler MacLeod) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established