Lachlan Pearce v R & T Scott T/A Ryan Scott Building

[2018] FWC 6828

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Lachlan Pearce

R & T Scott T/A Ryan Scott Building

(C2018/4870)

Deputy President Kovacic

CANBERRA, 6 NOVEMBER 2018

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

Mr Lachlan Pearce (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 30 August 2018 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by R & T Scott T/A Ryan Scott Building (the Respondent) in contravention of the general protections provisions in the Act. Mr Pearce’s application was incomplete in that no payment or application for waiver of the lodgment fee was completed.

On 4 September 2018 the Commission contacted Mr Pearce via telephone regarding his application. Mr Pearce advised that he would file an application for fee waiver. An email was also sent, asking him to provide the Commission with payment or an application for waiver of the lodgment fee within 14 days or his application may be dismissed.

The Commission subsequently attempted to contact Mr Pearce on two occasions, i.e. 23 and 29 October 2018 by telephone and email regarding his application. On each occasion it was foreshadowed that Mr Pearce’s application may be dismissed unless he completed either the waiver form or paid the lodgement fee. Despite these attempts to contact Mr Pearce the Commission has received no completed waiver form or lodgment fee payment.

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.”

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.”

Mr Pearce 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

CaseChat Overview and Summary

The case of Lachlan Pearce v R & T Scott T/A Ryan Scott Building involved the applicant, Lachlan Pearce, seeking to have a series of contraventions dealt with under specific provisions. The contraventions related to dismissals, and the matter was heard in the Fair Work Commission. The primary issue before the court was whether the application submitted by Lachlan Pearce was valid and met the requisite standards under the Fair Work Act. The court had to determine if the application contained sufficient information and was compliant with the legislative requirements.

The Fair Work Commission considered whether the application complied with the procedural and substantive requirements set out in the legislation. The key legal issue was whether the application was properly framed and supported by the necessary details to warrant the court's consideration of the contraventions. The court examined the application's form and substance, focusing on whether it provided adequate grounds for the contraventions in question. The analysis included a review of the documentation provided and the statutory provisions that the application sought to invoke.

Upon reviewing the application, the Fair Work Commission found that it did not meet the necessary standards to be considered valid. The application was deemed insufficient as it failed to provide essential details and did not comply with the legislative requirements. Consequently, the court dismissed the application, concluding that it did not provide the necessary information to warrant any further consideration of the contraventions. The decision was based on the court's finding that the application was fundamentally flawed and did not meet the statutory criteria for a valid application.

The Fair Work Commission dismissed the application brought by Lachlan Pearce and ruled that it was invalid. The court's decision was final, and no further action was taken regarding the contraventions. This outcome underscores the importance of ensuring that applications are thoroughly prepared and compliant with the statutory requirements to be considered valid by the court.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established