Mark Sturgeon v Bai Services (NSW) Pty Limited

[2023] FWC 205

[2023] FWC 205

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Mark Sturgeon
v

BAI Services (NSW) Pty Limited

(C2022/8180)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 25 JANUARY 2023

Application to deal with contraventions involving dismissal – application dismissed.

1. Mark Sturgeon (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 this 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 correspondence to the applicant advising that the application required payment of the filing fee or a completed waiver application. The email put the applicant on notice that the application may be dismissed in the absence of compliance.

1. An SMS was sent to the applicant on 13 December 2022 notifying the applicant to comply with the email from the Commission regarding payment of the filing fee.

1. On 16 December 2022, the Commission emailed both the applicant and his 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 further advised that the application may be dismissed in the absence of compliance.

1. On 16 December, the applicant’s representative advised the Commission that its attempts to contact the applicant had been unsuccessful. The applicant’s representative sought additional time to contact the applicant. The applicant was granted an extension of time to 20 December 2022 to pay the filing fee or a waiver application.

1. In the absence of compliance, the Commission telephoned the applicant on 21 December 2022. The call was not answered, and a voicemail message was left advising that payment of the filing fee remained outstanding and the application may be dismissed. An attempt was also made to call the applicant representative. The call went unanswered, and no voice message was left.

1. On 21 December 2022, the Commission emailed the applicant’s representative advising that the filing fee remained unpaid.

1. On 29 December 2022, the Commission telephoned the applicant and left a voice message advising that the application may be dismissed.

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 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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