Kurtis Barry v Unknown
[2024] FWC 1495
•7 JUNE 2024
| [2024] FWC 1495 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Kurtis Barry
v
Unknown
(C2024/1555)
| DEPUTY PRESIDENT EASTON | SYDNEY, 7 JUNE 2024 |
Application to deal with contraventions involving dismissal
On 8 March 2024, Kurtis Barry made an application under s.365 of the Fair Work Act 2009 (Cth). Mr Barry alleges that he was dismissed in contravention of the general protection provisions in Part 3-1 of the Act.
The application was not accompanied by the fee prescribed by the Fair Work Regulations 2009 (Cth) or by a completed application for waiver of the lodgement fee. In the application submitted Mr Barry did not include all of the required information about his employer.
Commission staff made a telephone call to Mr Barry’s nominated telephone number on 14 March 2024 and left a voice message asking him to call back. Mr Barry did not do so.
On 20 March 2024 Commission staff sent an email to Mr Barry’s nominated email address advising him that if he wanted to proceed with his claim he needed to pay the filing fee or apply for a waiver of the fee, and he needed to submit a completed application form.
In a telephone call on 9 April 2024 contact was made with Mr Barry’s mother and she confirmed that an amended application form would be lodged with payment.
On 12 April 2024 Commission again tried to call Mr Barry on his mobile phone. Mr Barry did not answer the call. Once again a voicemail message was left asking Mr Barry to pay the filing fee or apply for a waiver, and to provide a completed application form. A further email was sent on 15 April 2024 containing the same requests and warning.
The matter was referred to my chambers on 28 May 2024 and there were further attempts to contact Mr Barry by telephone on 28 May 2024 and 3 June 2024. Voicemail messages were once again left for Mr Barry asking him to take action.
One final email was sent to Mr Barry on 28 May 2024.
To date, Mr Barry has not responded to any correspondence from the Fair Work Commission, nor has he paid the lodgement fee or applied for a waiver of the fee, nor has he provided a completed Form F8 application.
Legislative framework
Section 367(1) of the Act requires that an application under s.365 “must be accompanied by any fee prescribed by the regulations.” At the time Mr Barry’s application was made the regulations prescribed a fee of $83.30. The regulations also allow for an application to be made for the fee to be waived.
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.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.
(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.”
Consideration and conclusion
Mr Barry 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.
Mr Barry has taken no action to address the deficiencies despite several invitations to do so and despite being notified of the potential consequences for his application if the deficiency is not rectified. In these circumstances, I have decided to exercise my discretion to dismiss the application in accordance with s.587(1)(a) of the Act.
The application is dismissed.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR775795>
0
0
0