Leigh Mitchell v Metroll SA Pty Ltd

[2018] FWC 4162

[2018] FWC 4162

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Leigh Mitchell
v
Metroll SA Pty Ltd
(C2018/2972)

DEPUTY PRESIDENT KOVACIC CANBERRA, 16 JULY 2018

Application to deal with contraventions involving dismissal.

[1] Mr Mitchell (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 31 May 2018 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Metroll SA Pty Ltd (the Respondent) in contravention of the general protections provisions in the Act. Mr Mitchell’s application was incomplete in that no payment or application for waiver of the lodgment fee was completed.

[2] On 5 June 2018 the Commission contacted Mr Mitchell via telephone regarding his application. Mr Mitchell did not answer the call, subsequently a voice message was left. 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.

[3] The Commission subsequently attempted to contact Mr Mitchell on two occasions, i.e. 26 June 2018 and 10 July 2018 by telephone regarding his application. On each occasion it was foreshadowed that Mr Mitchell’s application may be dismissed unless he completed either the waiver form or paid the lodgement fee. Despite these attempts to contact Mr Mitchell the Commission has received no completed waiver form or lodgment fee payment.

[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

(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.”

[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

(c) the circumstances in which all or part of the fee may be waived or

refunded.”

[6] Mr Mitchell 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.

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