Keaton Rooke v JRT Labour Hire Pty Ltd

[2019] FWC 5115

[2019] FWC 5115

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Keaton Rooke
v
JRT Labour Hire Pty Ltd
(C2019/3517)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 15 OCTOBER 2019

Application to deal with contraventions involving dismissal.

[1] Mr Keaton Rooke (Applicant) made an application under s.365 of the Fair Work Act 2009 (Act) alleging that he had been dismissed by JRT Labour Hire Pty Ltd (Respondent) in contravention of the general protections provisions of the Act. The application was received by the Fair Work Commission (Commission) on 5 June 2019 but was incomplete, as the lodgement fee was not paid and no application for waiver of the lodgement fee (waiver application) was made.

[2] On 6 June 2019, the Commission attempted to contact the Applicant by telephone. A voicemail message was left requesting that the Applicant contact the Commission. On the same day, an email was sent to the Applicant and his representative, Ms Tamina Sarwari of Unfair Dismissals Direct, foreshadowing that the application may be dismissed unless the lodgement fee was paid or a completed waiver application was received within 14 days.

[3] On 17 June 2019 and 24 June 2019, the Commission attempted to contact the Applicant by telephone regarding the application, which remained incomplete. On each occasion, a voicemail message was left requesting the Applicant contact the Commission regarding the application.

[4] On 24 June 2019, an email was also sent to the Applicant concerning the incomplete application.

[5] Another attempt was made by the Commission to contact the Applicant by telephone on 28 June 2019. The Applicant did not answer the call. A letter was posted to the Applicant’s address on 2 July 2019, advising that that the application may be dismissed unless the lodgement fee was paid or a completed waiver application was received.

[6] To date, the Commission has not received payment of the lodgement fee or a completed waiver application from the Applicant.

[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] The Applicant has failed to comply with s.367(1). Accordingly, the application has not been made in accordance with the Act and is therefore dismissed pursuant to s.587(1)(a). An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

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