Leo Westland v The Trustee for the Deck Bar & Dining Unit Trust

[2019] FWC 1456

[2019] FWC 1456

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Leo Westland
v
The Trustee for the Deck Bar & Dining Unit Trust
(C2019/504)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 2 OCTOBER 2019

Application to deal with contraventions involving dismissal - application dismissed.

[1] Mr Leo Westland (the Applicant) made an application under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by The Trustee for the Deck Bar & Dining Unit Trust (the Respondent) in contravention of the general protections provisions of the Act. The application was received by the Fair Work Commission (the Commission) on 18 January 2019 but was incomplete as no payment of the lodgement fee was made and no application for waiver of the lodgement fee (waiver application) was completed.

[2] On 21 January 2019, the Commission contacted the Applicant by telephone to advise him that the lodgement fee was unpaid. During the telephone call, the Applicant informed the Commission that he would call the Commission to make payment on 23 January 2019. Also on 21 January 2019, email correspondence was sent by the Commission to the Applicant and the Applicant’s representative, Ms Alagic of Unfair Dismissals Direct, stating that the application was incomplete.

[3] The Applicant did not attend to payment of the lodgement fee on 23 January 2019.

[4] On 1 February 2019, the Commission attempted to contact the Applicant by telephone. A voicemail message was left for the Applicant requesting he contact the Commission regarding his application. The voicemail message included a statement to the effect that his application may be dismissed in the absence of the lodgement fee being paid or further correspondence with the Commission.

[5] The Commission attempted to contact the Applicant again via telephone on 15 February 2019. A further voicemail message was left for the Applicant requesting he contact the Commission.

[6] On 22 February 2019, email correspondence was sent to the Applicant and his representative Ms Alagic, foreshadowing that the application may be dismissed unless he completed either the waiver application or paid the lodgement fee. A telephone call was also made to Unfair Dismissals Direct on the same day. A voicemail message was left requesting a call back to discuss payment of the lodgement fee.

[7] The Applicant responded by email on 22 February 2019 advising that payment of the lodgement fee would be made on 25 February 2019.

[8] The lodgement fee was not paid on 25 February 2019.

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

[10] 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.”

[11] 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.”

[12] The Applicant has failed to comply with s.367(1) of the Act. Accordingly, the application has not been made in accordance with the Act and is therefore dismissed pursuant to s.587(1)(a) of the Act. An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

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