Luke Duncan v Precast Civil Industries Pty Ltd

[2023] FWC 192

[2023] FWC 192

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Luke Duncan
v

Precast Civil Industries Pty Ltd

(C2022/8178)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 25 JANUARY 2023

Application to deal with contraventions involving dismissal – application dismissed.

1. Luke Duncan (applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that they were dismissed in contravention of the general protection provisions in Part 3-1 of the Act.

1. The application was not accompanied by the fee prescribed by the Fair Work Regulations 2009 (Cth) (regulations) or by a completed application for waiver of the filing fee (waiver application). The applicant has not responded to correspondence from the Commission alerting them to this deficiency, nor has the deficiency been rectified. I have decided to dismiss the application for the following reasons.

Context

1. The application was filed on 9 December 2022 by the applicant’s representative.

1. On 12 December 2022 the Commission emailed the applicant and the applicant’s representative advising that the application required payment of the filing fee or a completed waiver application. The email contained instructions on how to pay or make a waiver application. The email also put the applicant on notice that the application may be dismissed for failure to comply.

1. An SMS notification was also sent to the applicant’s nominated telephone number on 13 December 2022. The SMS requested action in compliance with the email from the Commission regarding payment of the filing fee.

1. On 16 December 2022 the Commission emailed correspondence to the applicant and his representative. The email contained instructions on how to pay or make a waiver application. The email also advised that the application may be dismissed for failure to comply.

1. The Commission telephoned the applicant’s  nominated telephone number on 20 December 2022. The call was not answered, and there was no facility allowing a voicemail to be left. The Commission also sent a reminder email to the applicant and his representative regarding the requirement to pay the filing fee.

1. A further attempt to contact the applicant by telephone was made by the Commission on 21 December 2022. The call was not answered, and a voicemail could not be left.

1. To date, the applicant has not paid the filing fee or filed a completed waiver application.

Legislative framework

1. In relation to an application made pursuant to s 365 of the Act, s 367(1) provides that the application “must be accompanied by any fee prescribed by the regulations.” At the time the application was made, the regulations prescribed a fee of $77.80. The regulations also allow for an application to be made for the fee to be waived.

1. Section 587 of the Act provides as follows:

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.

Consideration and conclusion

1. The applicant has neither paid the filing fee nor sought a fee waiver. Accordingly, the application is not made in accordance with s 367 of the Act.

1. The applicant has taken no action to address the deficiency despite being notified of it by the Commission on multiple occasions. In these circumstances, I have decided to exercise my discretion to dismiss the application in accordance with s 587(1)(a) of the Act.

1. The application is dismissed.

DEPUTY PRESIDENT

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