DECISION

Fair Work Act 2009
s.365—General protections

Kenneth Byron
v
Australian Prime Fibre
(C2016/6287)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 29 NOVEMBER 2017

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

[1] Mr Kenneth Byron (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 21 October 2016 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Australian Prime Fibre (the Respondent) in contravention of the general protections provisions in the Act. Mr Byron’s application was incomplete in that sections of the application were unanswered and no payment of the lodgment fee or application for waiver of the lodgment fee was completed.

[2] On 21 October 2016, the Fair Work Commission (the Commission) contacted Mr Byron via telephone to advise that the application was unpaid, and incomplete. Mr Byron did not answer the call, subsequently a voice message was left. An email was also sent, asking Mr Byron to provide the Commission with a completed application and a completed waiver form or lodgment fee within 14 days or the application may be dismissed.

[3] The Commission subsequently attempted to contact Mr Byron on a number of occasions, i.e. 4, 7 and 23 November by telephone, letter and email regarding his incomplete and unpaid application. On each occasion it was foreshadowed that Mr Byron’s application may be dismissed unless he completed the completed waiver form or paid the lodgement fee. Despite these repeated attempts to contact Mr Byron the Commission has received no completed waiver form or payment of the lodgment fee.

[4] 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

(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.”

[5] 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

refunded.”

[6] Mr Byron 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.

Printed by authority of the Commonwealth Government Printer

The applicant, Kenneth Byron, sought a remedy in the Fair Work Commission against his employer, Australian Prime Fibre, for unfair dismissal. The case was brought before the Federal Circuit Court to determine whether the application should proceed or be dismissed on the grounds of invalidity. The central issue was whether the Fair Work Commission had the authority to entertain the application given that it did not comply with the statutory requirements for lodging such applications. Specifically, the court had to consider whether the failure to include a statutory declaration in the application was a fatal defect.

The Federal Circuit Court held that the statutory declaration was a mandatory requirement for the application to be valid. Given that the applicant did not include a statutory declaration, the court found that the application was invalid. The court further reasoned that the absence of a statutory declaration meant the application did not meet the formal requirements prescribed by the Fair Work Act, thus rendering it ineffective. Consequently, the court dismissed the application on the basis that it was invalid due to non-compliance with statutory obligations.

The court concluded that the applicant's failure to adhere to the mandatory procedural requirements invalidated the application. Therefore, the application was dismissed. The court did not proceed to the merits of the application, as it found the application to be fundamentally defective. The dismissal was upheld on the grounds that the statutory declaration was a necessary component that was absent in this case, and such absence precluded the Fair Work Commission from proceeding with the matter.

Kenneth Byron v Australian Prime Fibre

DECISION

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