Mark Nash v Astute Tiling Pty Ltd

[2024] FWC 1998

[2024] FWC 1998

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Mark Nash
v

Astute Tiling Pty Ltd

(C2024/4387)

DEPUTY PRESIDENT EASTON SYDNEY, 30 JULY 2024

Application to deal with contraventions involving dismissal

1. On 28 June 2024, Mark Nash made an application under s.365 of the Fair Work Act 2009 (Cth). Mr Nash alleges that he was 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) or by a completed application for waiver of the lodgement fee.

1. Commission staff attempted to contact Mr Nash on his nominated telephone number and were unable to leave a message.

1. A letter was emailed to Mr Nash on 1 July 2024 to update the waiver form to include the missing information. Staff also sent an SMS on the same day asking Mr Nash to contact the Fair Work Commission because there is a problem with his case.

1. On 16 July 2024 Commission staff attempted contact with Mr Nash, the call was unanswered and staff were unable to leave a voice message.

1. A reminder to pay was sent to Mr Nash on 16 July 2024.  To date no payment has been received.

1. The matter was referred to my chambers on 24 July 2024 for further management of the matter.

Legislative framework

1. Section 367(1) of the Act requires that an application under s.365 “must be accompanied by any fee prescribed by the regulations.” At the time Mr Nash’s application was made the regulations prescribed a fee of $83.30. The regulations also allow for an application to be made for the fee to be waived.

“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.”

Consideration and conclusion

1. Mr Nash has neither paid the lodgement fee or sought to provide a completed waiver. Accordingly, the application is not made in accordance with s.367 of the Act.

1. Mr Nash has taken no action to address the deficiency despite several invitations to do so and despite being notified of the potential consequences for his application if the deficiency is not rectified. 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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