Kayit Hirandi v Costa Nominees Pty Ltd

[2022] FWC 322

[2022] FWC 322

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Kayit Hirandi
v

Costa Nominees Pty Ltd

(C2022/553)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 16 FEBRUARY 2022

Application to deal with contraventions involving dismissal – application dismissed.

1. Mr Kayit Hirandi (applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that he was dismissed by Costa Nominees Pty Ltd 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 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

The application was received by the Commission on 15 January 2022. On 17 January 2022, the Commission telephoned the applicant as the application was made without payment of the required lodgement fee. Correspondence was subsequently issued by the Commission advising the applicant that he had until 31 January 2022 to pay the lodgement fee or apply to have the fee waived, or his application may be dismissed.

1. On 2 February 2022, the Commission telephoned the applicant as the lodgement fee remained unpaid. The applicant was reminded about the option to seek a fee waiver. The applicant was advised that urgent action was required or his application may be dismissed.

1. On 7 February 2022, the Commission telephoned the applicant. The applicant confirmed that he had not paid the lodgement fee or submitted a waiver application. The applicant was informed that if payment was not received in seven days, his application may be dismissed. The Commission subsequently issued correspondence to the applicant to this effect.

On 14 February 2022, the Commission telephoned the applicant. A voice message was left advising that the application would be referred to a Member as the lodgement fee remained unpaid and the applicant had not sought a fee waiver.

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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