Joshua Young v Caboolture Caravan Repairs

[2022] FWC 400

[2022] FWC 400

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Joshua Young
v

Caboolture Caravan Repairs

(C2022/672)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 25 FEBRUARY 2022

Application to deal with contraventions involving dismissal.

1. Mr Joshua Young (Applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). He alleges that he was dismissed by Caboolture Caravan Repairs in contravention of the general protection provisions 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 lodgement fee (waiver application). The Applicant has not responded to correspondence from the Commission alerting him to this deficiency, nor has the deficiency been rectified. I have decided to dismiss the application for the following reasons.

Context

1. The application was received by the Commission on 21 January 2022.

1. On 24 January 2022, the Commission telephoned the Applicant on his nominated number. A voicemail was left with the Applicant asking him to contact the Commission to pay the filing fee for the application and to complete certain questions on the Form F8 application.

1. Later that day, a letter was emailed to the Applicant advising that he must pay the lodgement fee or file a waiver application and file a completed Form F8. It was stated in bold in the letter that “[i]n the absence of any advice from you within 14 days of the date of this letter, this application may be dismissed.”

1. On 7 February 2022, a further phone call was made by the Commission to the Applicant on his nominated number. A second voicemail was left identifying that the Applicant had not paid the filing fee or filed a waiver application and that he had not returned a completed Form F8. The Commission noted in the voicemail that the application was at risk of being dismissed.

1. On 9 February 2022, the Commission called the Applicant on his nominated telephone number and left another voicemail. The voicemail recorded that if the Applicant did not complete his Form F8 and pay the filing fee or file a waiver application his application would be subject to dismissal in 7 days.

1. A letter setting out the matters discussed in the voicemail was sent to the Applicant later on 9 February 2022. While it appears that a date is missing from one part of this letter, I am satisfied the key information, being the requirement to pay the filing fee or file a waiver application, the date for compliance with this requirement and the consequences of non-compliance with the requirement, was effectively communicated when reading the letter as a whole. Relevantly, the letter stated: “You have until 16 February 2022 to pay the required application fee or file the F80 Waiver Form” and subsequently noted that “your application may be dismissed.” (emphasis omitted)

1. My Chambers made a final call to the Applicant on 24 February 2022. The Applicant did not answer and no voicemail was left.

1. To date, the Applicant has not paid the lodgement 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 $74.90. 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.

(emphasis added)

Consideration and conclusion

1. The Applicant has neither paid the lodgement fee or 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 on multiple occasions. In these circumstances, 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

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