Jobey Green v Metal Manufactures Pty Ltd

[2024] FWC 826

[2024] FWC 826

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Jobey Green
v

Metal Manufactures Pty Ltd

(C2024/801)

DEPUTY PRESIDENT CLANCY MELBOURNE, 2 APRIL 2024

Application to deal with contraventions involving dismissal – application dismissed.

1. On 9 February 2024, Mr Jobey Green made an application under s365 of the Fair Work Act 2009 (FW Act). Mr Green 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 (Regulations) nor by a completed Form F80 – Application for waiver of the application fee (Form F80).

1. On 12 February 2024, the Commission emailed correspondence to Mr Green’s nominated email address advising that the application required payment of the filing fee or a completed Form F80. The email further stated as follows:

“Please pay the application fee within 7 calendar days (or apply to have the fee waived) so we can progress your case.

If you don’t make payment within 7 days your application may be dismissed.”

1. On 13 February 2024, an SMS notification was also sent to Mr Green’s nominated telephone number. The SMS advised Mr Green to take action in compliance with the email from the Commission regarding payment of the application fee.

1. On 15 February 2024, the Commission emailed correspondence to Mr Green’s nominated email address reminding him that his application required payment of the application fee or a completed Form F80. The correspondence instructed Mr Green on how to pay the application fee or complete a Form F80 and further stated as follows:

“Reminder: You need to pay the application fee (or apply to have the fee waived) or your application may be dismissed.”

1. On 19 February 2024 the Commission contacted Mr Green on his nominated telephone number to obtain payment or a completed Form F80. Mr Green advised that he believed he had made the payment and checked his bank account during the phone call to confirm. Mr Green advised that he was mistaken and had not made payment. Mr Green informed the Commission that he would attempt to make payment that day using the payment link and if he encountered problems, he would call the Commission to make payment over the phone. The Commission advised Mr Green that if payment was not received by close of business on Wednesday 21 February 2024, the matter was at risk of being dismissed.

1. To date, Mr Green has not paid the application fee or filed a completed Form F80.

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 $83.30. 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. In considering all the circumstances, I am satisfied that the application form in question was not accompanied by the prescribed fee and the application has not been made in accordance with the Act. Given the absence of the prescribed fee, it is likely that there is no valid application before the Commission[1] and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act.

1. Despite Mr Green advising the Commission that he would make the payment of the application fee, he has neither paid the lodgement fee nor sought a fee waiver. In these circumstances, I am satisfied that it is appropriate to dismiss the purported application.

1. The application is dismissed. An Order[2] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].

[2] PR772919.

Printed by authority of the Commonwealth Government Printer

<PR772918>