Loizides v Knox Food Group Pty Ltd Summary

[2016] FWC 2246

DECISION

Fair Work Act 2009
s.365—General protections
Peter Loizides
v
Knox Food Group Pty Ltd T/A Gios Cafe & Restaurant
(C2016/2739)
DEPUTY PRESIDENT KOVACIC	CANBERRA, 8 APRIL 2016

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

dismissed.

[1] Mr Peter Loizides (the Applicant) made an application which was received by the Fair

Work Commission (the Commission) on 24 February 2016 under s.365 of the Fair Work Act

2009 (the Act) alleging that he had been dismissed by Knox Food Group Pty Ltd T/A Gios

Café & Restaurant (the Respondent) in contravention of the general protections provisions in

the Act. Mr Loizides’s application was incomplete in that the application was unsigned and

no payment of the application fee accompanied his application, nor did Mr Loizides seek to

have the application fee waived.

[2] On 26 February 2016, the Commission contacted Mr Loizides via email asking him

to provide the Commission with a either completed waiver form or the lodgment fee and

the signature page of the application. Mr Loizides provided a credit card payment which was

subsequently declined. A letter was then sent to Mr Loizides asking him to complete a waiver

form or pay the lodgement fee and provide a signed application within 14 days or the

application might be dismissed.

[3] On 1 March 2016, Mr Loizides provided the Commission with a signed page of the

application.

[4] The Commission subsequently attempted to contact Mr Loizides on a number of

occasions, i.e. 1, 21, 22 and 27 March by telephone, letter and email regarding his application

and incomplete payment. On each occasion it was foreshadowed that Mr Loizides’s

application may be dismissed unless he completed the waiver form or paid the lodgement

fee. Despite these repeated attempts to contact Mr Loizides the Commission has received no

completed waiver or payment of the lodgment fee.
[2016] FWC 2246

[5] 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.
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:

(c) on its own initiative; or
(d) on application.”
[6] 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.”

[7] Mr Loizides 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

In the case of Loizides v Knox Food Group Pty Ltd, the applicant, Peter Loizides, sought to make a claim for unfair dismissal against his employer, Knox Food Group Pty Ltd, operating as Gios Cafe & Restaurant, under section 365 of the Fair Work Act 2009. The application was lodged on 24 February 2016 but was incomplete as it was unsigned and did not include the required application fee. Subsequent attempts by the Fair Work Commission to contact Loizides to rectify these deficiencies were unsuccessful. The key legal issue before the Deputy President was whether the application could be dismissed for not complying with the Act's requirements regarding the submission of a completed application and the payment of the application fee.

The Deputy President found that the application did not comply with section 367(1) of the Act, which mandates that an application under section 365 must be accompanied by the prescribed fee. As the application was neither signed nor accompanied by the appropriate fee, it did not adhere to the statutory requirements. Consequently, the application was dismissed pursuant to section 587(1)(a) of the Act, which allows for the dismissal of an application that is not made in accordance with the Act. The Deputy President concluded that, despite the failure of Loizides to respond to attempts to resolve the deficiencies in his application, there was no basis under the Act to excuse the procedural non-compliance.

In light of the foregoing, the Deputy President ordered that the application be dismissed and issued an order to that effect. This decision underscores the importance of strict compliance with procedural requirements in applications to the Fair Work Commission, highlighting that even repeated attempts to rectify procedural errors are insufficient if the application itself remains fundamentally non-compliant.

Loizides v Knox Food Group Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established