Joshua Singh v Jetsart

[2024] FWC 2696

[2024] FWC 2696

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.372—General protections

Joshua Singh
v

Jetsart

(C2024/5000)

DEPUTY PRESIDENT CLANCY MELBOURNE, 26 SEPTEMBER 2024

Application to deal with other contravention disputes – application dismissed.

1. On 19 July 2024, Mr Joshua Singh made a general protections application not involving dismissal under s 372 of the Fair Work Act 2009 (Cth) (the Act) to the Fair Work Commission.

1. The application was accompanied with a completed Form F80 – Waiver of application fee (Form F80), as prescribed by the Fair Work Regulations 2009 (Cth).

1. On 25 July 2024, the request for waiver of the application fee pursuant to Mr Singh’s Form F80 was refused by the approving delegate.

1. On the same day, the Commission attempted to contact Mr Singh on his nominated telephone number, to inform him that his fee waiver application was refused. The call was answered and a file note was left detailing that Mr Singh understood the waiver was refused and then requested a payment request be sent via email as opposed to being paid over the phone.

1. Later that day, the Commission emailed correspondence to Mr Singh’s nominated email address requesting him to pay the application fee for his matter to be progressed. The email relevantly 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.”

(bold and underlined text in the original)

1. On 9 August 2024, the Commission emailed correspondence to Mr Singh’s nominated email address informing him that that his fee waiver application was refused, and that payment of the application fee within 14 days (Friday, 23 August 2024) was required in order for him to proceed with his matter.

1. On the same day, a SMS notification was also sent to Mr Singh’s nominated telephone number, requesting him to contact the Commission.

1. On 9 September 2024, the Commission made a final attempt to contact Mr Singh on his nominated telephone number. However, Mr Singh could not be reached and a voicemail message were left requesting Mr Singh to urgently contact the Commission and informing him that his matter was at risk of being dismissed if payment of the application fee was not received.

1. To date, Mr Singh has not paid the application fee.

Legislative framework

1. In relation to an application made pursuant to s 372 of the Act, s 373(1) of the Act relevantly provides that the application “must be accompanied by any fee prescribed by the regulations”.

1. Section 587 of the Act relevantly 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.

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.

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.” (bold text in the original)

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 fee payment, 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 the attempts by the Commission to contact Mr Singh, the reminders and multiple requests, Mr Singh has not responded. In these circumstances, I am satisfied that it is appropriate in all the circumstances 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] PR7779717.

Printed by authority of the Commonwealth Government Printer

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