Mark Nash v Astute Tiling Pty Ltd Summary

[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

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.

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.

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

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.

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

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

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

Legislative framework

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

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.

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.

The application is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Mark Nash brought an application before the Fair Work Commission under section 365 of the Fair Work Act 2009, alleging he was dismissed by Astute Tiling Pty Ltd in contravention of the general protection provisions in Part 3-1 of the Act. Nash’s application was incomplete as it did not include the required lodgement fee of $83.30 or a completed application for waiver of the fee, as prescribed by the Fair Work Regulations 2009. Despite multiple attempts by the Commission staff to contact Nash and provide him with the opportunity to rectify the deficiencies in his application, Nash did not take any action to address the issue. Consequently, the matter was referred to Deputy President Easton for further management.

The primary legal issue before the Deputy President was whether Nash's application should be dismissed due to non-compliance with the statutory requirements under section 367 of the Act. This section mandates that applications under section 365 must be accompanied by any prescribed fee. Nash's application was neither accompanied by the required fee nor a completed waiver application, and despite being notified of the potential consequences, Nash did not remedy the deficiency. The Deputy President had to determine if the application could be dismissed under section 587(1)(a) of the Act for not being made in accordance with the Act.

Deputy President Easton concluded that Nash's application did not comply with the statutory requirements as it was not accompanied by the prescribed fee or a waiver application. The Deputy President noted that Nash had been given multiple opportunities to rectify the deficiency but failed to do so. In exercising discretion under section 587(1)(a) of the Act, Deputy President Easton decided to dismiss Nash's application for non-compliance with the Act. The application was formally dismissed, and no further action will be taken unless and until a properly completed application is submitted.

In the end, the application was dismissed, and no further action will be taken unless and until a properly completed application is submitted.

Mark Nash v Astute Tiling Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established