Karan Chauhan v Khera Logistics

[2018] FWC 6829

[2018] FWC 6829

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Karan Chauhan
v
Khera Logistics
(C2018/5264)

DEPUTY PRESIDENT KOVACIC CANBERRA, 6 NOVEMBER 2018

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

[1] Mr Karan Chauhan (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 21 September 2018 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Khera Logistics (the Respondent) in contravention of the general protections provisions in the Act. Mr Chauhan’s application was incomplete in that no payment or application for waiver of the lodgment fee was completed.

[2] On 21 September 2018 the Commission contacted Mr Chauhan via email regarding his application. Mr Chauhan 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] On 24 September 2018 the Commission contacted Mr Chauhan via telephone regarding his application. Mr Chauhan advised that he would make payment of the application fee the following day. The following day, 25 September 2018, the Commission contacted Mr Chauhan by telephone regarding his application. Mr Chauhan again advised that he would make payment for the application fee on the following day, i.e. 26 September 2018.

[4] On 27 September 2018, the Commission contacted Mr Chauhan by telephone regarding his application. In the call Mr Chauhan advised that he would contact the Commission straight back to make payment of the application fee. Mr Chauhan did not return the call and subsequently the Commission attempted to contact Mr Chauhan again regarding his application, however the call went unanswered.

[5] On 2 October 2018, the Commission contacted Mr Chauhan by telephone regarding his application. Mr Chauhan advised that he would complete the application for fee waiver. The Commission subsequently emailed Mr Chauhan a copy of the application for fee waiver.

[6] The Commission subsequently attempted to contact Mr Chauhan on two further occasions i.e. 26 and 29 October 2018 by telephone regarding his application. It was foreshadowed that Mr Chauhan’s application may be dismissed unless he completed either the waiver form or paid the lodgement fee. Despite these repeated attempts to contact Mr Chauhan, the Commission has received no completed waiver form or lodgment fee payment.

[7] 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

(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.”

[8] 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

(c) the circumstances in which all or part of the fee may be waived or

refunded.”

[9] Mr Chauhan 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.

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