Masaki Odanaka v Cape Australia Onshore Pty Ltd T/A Cape

[2017] FWC 6390

[2017] FWC 6390

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Masaki Odanaka
v
Cape Australia Onshore Pty Ltd T/A Cape
(C2017/3391)

DEPUTY PRESIDENT KOVACIC CANBERRA, 14 DECEMBER 2017

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

[1] Mr Masaki Odanaka (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 23 June 2017 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Cape Australia Onshore Pty Ltd T/A Cape (the Respondent) in contravention of the general protections provisions in the Act. Mr Odanaka’s application was incomplete in that no payment or application for waiver of the lodgment fee was provided.

[2] On 23 June 2017 the Commission contacted Mr Odanaka by telephone regarding his application. Mr Odanaka did not answer the call, subsequently a voice message was left and an email sent asking Mr Odanaka to provide the Commission with payment or an application for waiver of the lodgment fee within 14 days or his application may be dismissed.

[3] On 3 August 2017 Mr Odanaka contacted the Commission and advised that the Respondent had offered him his job back and that would be discontinuing the application if he was re-employed.

[4] On 14 September 2017 the Commission unsuccessfully attempted to contact Mr Odanaka by telephone regarding his application. Subsequently a voice message was left and an email sent. The correspondence reiterated previous advice that his application may be dismissed unless he either completed the waiver form or paid the lodgement fee.

[5] On 1 December 2017 the Commission again contacted Mr Odanaka regarding his application. In the call Mr Odanaka advised that he was still considering discontinuing his application and requested he be provided with a further week to consider. Mr Odanaka was again advised that if he did not discontinue his application or provide the Commission with payment or an application for waiver of the lodgment fee within 7 days his application may be dismissed. An email was also sent reiterating this advice.

[6] On 7 December 2017 the Commission attempted unsuccessfully to contact Mr Odanaka by telephone regarding his application.

[7] On 11 December 2017 the Commission contacted Mr Odanaka by telephone reiterating previous advise that his application may be dismissed unless he provided the Commission with payment or an application for waiver of the lodgment fee. Mr Odanaka advised that he was still unsure if he would continue with the application and he requested the Commission’s telephone number so that he could arrange payment in the next few days. An email was subsequently sent providing Mr Odanaka with an application for fee waiver and contact information to arrange payment with the Commission. The email also advised that his application may be dismissed unless either payment or an application for fee waiver was submitted as soon as possible.

[8] Despite these repeated requests the Commission has received no completed waiver form or payment of the lodgment fee from Mr Odanaka.

[9] 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.

(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.”

[10] 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.”

[11] Mr Odanaka 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.

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