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

(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

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.

Printed by authority of the Commonwealth Government Printer

Masaki Odanaka filed an application in the Fair Work Commission against Cape Australia Onshore Pty Ltd, trading as Cape, seeking relief for alleged contraventions involving his dismissal. The applicant claimed that his termination was unlawful and that he was entitled to various remedies, including reinstatement and compensation. The respondent contested the claims, asserting that the dismissal was conducted in accordance with the relevant employment laws and policies.

The legal issues before the Commission were whether the application was validly made and whether the applicant's claims were substantiated. Central to the inquiry was the interpretation of the applicable provisions of the Fair Work Act 2009 and the procedural requirements for lodging and progressing an application for relief concerning alleged unfair dismissal. Additionally, the Commission had to determine whether the respondent had indeed contravened the law by dismissing the applicant in a manner that was harsh, unjust, or unreasonable.

In considering these matters, the Commission assessed the procedural correctness of the application and the merits of the applicant's claims. It was found that the application was flawed due to non-compliance with certain procedural requirements, rendering it invalid. Consequently, the Commission dismissed the application. The procedural deficiencies were deemed significant enough to preclude a substantive examination of the merits of the applicant's claims. As a result, the Commission did not proceed to determine whether the dismissal was unfair or whether the applicant was entitled to any remedies.

The Fair Work Commission dismissed the application and made no orders in relation to the applicant's claims.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established