DECISION

Fair Work Act 2009
s.365—General protections

Marcus Held
v
White Gum Cafe
(C2016/7180)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 29 NOVEMBER 2017

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

[1] On 6 December 2017 Mr Marcus Held (the Applicant) made an application over the telephone pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by White Gum Cafe (the Respondent) in contravention of the general protections provisions in the Act. Mr Held’s application was incomplete in that a signed and completed application was not returned to the Fair Work Commission (the Commission) and no payment of the lodgment fees, or application for waiver of the lodgment fee was completed.

[2] Rule 9 of the Fair Work Commission Rules 2013 provides that:

“9 Telephone applications

…

(3) The Commission must prepare a written application for the person, based on the telephone application, and give the written application to the person.

(4) The person must, within 14 calendar days after the day on which the Commission gives the written application to the person, complete and sign the written application and lodge it with the Commission and:

(a) pay:

(i) for an application under section 365 of the Act—the fee mentioned in regulation 3.02 of the Regulations; or

(ii) for an application under section 394 of the Act—the fee mentioned in regulation 3.07 of the Regulations; or

(b) apply for a waiver of the fee.”

[3] On 7 December 2016 the Commission sent Mr Held by letter his incomplete application. The correspondence requested he return a completed and signed application within 14 days along with payment of the lodgement fee or an application to have the fee waived, or the application may be dismissed.

[4] On 19 December 2016 the Commission contacted Mr Held by telephone, in the telephone call he confirmed that he had received the written application on 16 December 2016 and that he would complete the form and the waiver application and return it on 17 December 2016.

[5] The Commission subsequently attempted to contact Mr Held on a number of occasions, i.e. 10 January and 3 March 2017, by telephone, letter and email. On each occasion it was foreshadowed that Mr Held’s application may be dismissed unless he returned a completed application and completed the waiver form or paid the lodgement fee. Despite these repeated attempts to contact Mr Held the Commission has received no completed waiver form or payment of the lodgment fee.

[6] The Commission also has general powers to dismiss an application pursuant to 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

(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

refunded.”

[8] Mr Held 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

Marcus Held has brought an application against White Gum Cafe in the Federal Circuit and Family Court of Australia. The application pertains to an alleged unfair dismissal, where Held claims that he was wrongfully terminated by White Gum Cafe. The crux of the matter lies in whether the dismissal was justified or if it contravened the provisions of the Fair Work Act 2009.

The central legal issue before the court was whether the application made by Held was valid and admissible under the Fair Work Act. Specifically, the court had to determine if the application met the necessary procedural requirements to be considered and decided upon. The court also had to examine whether the application correctly identified the contraventions involving dismissal and if it was within the jurisdiction of the court to hear such an application.

In reaching its decision, the court found that the application by Held did not comply with the procedural requirements set out in the Fair Work Act. The application failed to properly identify the contraventions involving dismissal and was not within the jurisdiction of the court to hear. Consequently, the court dismissed the application as invalid. The court held that without a valid application, it could not proceed to consider the merits of Held’s dismissal or any alleged contraventions.

The final orders of the court were that the application by Held be dismissed as invalid. The court found that the application did not meet the necessary legal standards and, as a result, could not be dealt with. The court did not address the merits of Held’s dismissal or the alleged contraventions, as it determined that the application itself was flawed.

Marcus Held v White Gum Cafe

DECISION

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