Marc Griffiths

[2019] FWC 5026

[2019] FWC 5026

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Marc Griffiths
(C2019/636)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 2 OCTOBER 2019

Application to deal with contraventions involving dismissal.

[1] Mr Marc Griffiths (the Applicant) made an application under s.365 of the Fair Work Act 2009 (the Act). The application did not name a Respondent. The application was received by the Fair Work Commission (the Commission) on 29 January 2019 but was not made using the appropriate form (i.e. Form F8). Rather, it appeared to be a general protections court application to be lodged with the Federal Circuit Court of Australia.

[2] On 30 January 2019, the Commission attempted to contact the Applicant by telephone to advise him that the application was not made using the appropriate form. Both telephone calls were unanswered, and no voicemail facility was available. On the same day, the Commission sent email correspondence to the Applicant advising him if he wished to pursue the application, he was required to complete and submit a Form F8 and pay the lodgement fee or provide a completed application for waiver of the lodgement fee within 14 days, or his application may be dismissed.

[3] On 18 February 2019, in the absence of a response from the Applicant, the Commission telephoned him and left voicemail messages on both contact numbers provided on the application asking that he contact the Commission.

[4] The Commission subsequently wrote to the Applicant on 26 February 2019 via email correspondence and post. It was foreshadowed that the application may be dismissed unless the appropriate form was provided by 1 March 2019.

[5] No correspondence has been received from the Applicant since the application was lodged on 29 January 2019. To date, the Commission has not received payment of the lodgement fee or a completed waiver application.

[6] 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:

(a) on its own initiative; or

(b) on application.”

[7] 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.”

[8] 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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