Kyle Portelli v Regional Workforce Management Pty Ltd

[2019] FWC 5956

[2019] FWC 5956

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Kyle Portelli
v
Regional Workforce Management Pty Ltd
(C2019/3633)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 11 OCTOBER 2019

Application to deal with contraventions involving dismissal.

[1] Mr Kyle Portelli (Applicant) made an application under s.365 of the Fair Work Act 2009 (Act) alleging that he had been dismissed by Regional Workforce Management Pty Ltd (Respondent) in contravention of the general protections provisions of the Act. The application was received by the Fair Work Commission (Commission) on 11 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 13 June 2019, the Commission contacted the Applicant by telephone regarding the incomplete application. The Applicant advised he was unable to pay the fee at that time. The Commission sent an email to the Applicant the same day attaching the waiver application. The cover letter to the waiver application stated that the Applicant could apply to have the application fee waived if paying the fee would cause serious hardship. The Applicant was advised that in the absence of a completed waiver application within 14 days, the application may be dismissed.

[3] The Commission did not receive a completed waiver application from the Applicant. On 25 June 2019, the Commission contacted the Applicant by telephone. The Applicant advised that he would submit the waiver application by 27 June 2019.

[4] On 28 June 2019, the Commission contacted the Applicant by telephone to enquire about the waiver application, which had not been received. The Applicant requested that another copy of the waiver application be emailed to him. The Commission emailed a second copy of the waiver application to the Applicant the same day.

[5] On 9 July 2019, the Commission contacted the Applicant by telephone advising that the waiver application had not been received. The Applicant advised that he believed he had emailed the waiver application to the Commission. A review of the Commission’s email mailbox disclosed that no waiver application had been received from the Applicant. The Applicant was instructed to resend the waiver application otherwise his application may be dismissed.

[6] On 18 July 2019, a further attempt was made to contact the Applicant by telephone. The telephone line was not clear on account of poor reception. Three attempts to telephone the Applicant immediately followed, without success. A letter was sent by post to the Applicant’s residential address, and a further email was sent to the Applicant and his representative, Ms Vanessa Nikolovska of Unfair Dismissals Direct advising that the application was made without payment of the lodgement fee and a completed waiver application had not been received. The letter stated that in the absence of any advice from the Applicant concerning these matters within seven days, the application may be dismissed.

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

[8] 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.”

[9] 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.”

[10] 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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