Mathew Christopher Mclean v TWG Group Resources Pty Ltd
[2023] FWC 1911
•2 AUGUST 2023
| [2023] FWC 1911 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Mathew Christopher Mclean
v
TWG Group Resources Pty Ltd
(C2023/2924)
| VICE PRESIDENT CATANZARITI | SYDNEY, 2 AUGUST 2023 |
Application to deal with contraventions involving dismissal - application dismissed.
On 19 May 2023, Mr Matthew Christopher Mclean (the Applicant) lodged an application under s 365 of the Fair Work Act 2009 (Cth) (the Act). The Applicant alleges that they were dismissed in contravention of the general protection provisions in Part 3-1 of the Act.
The Applicant’s Form F8 stated that a Form F80 fee waiver application had been completed and attached. However, the application was not accompanied by Form F80, nor the lodgement fee required by the Fair Work Regulations 2009 (Cth) (the Regulations). The applicant has not responded to correspondence from the Commission alerting them to this deficiency, nor has it been rectified. I have decided to dismiss the application for the following reasons.
Context
On 26 May 2023, the Commission called the Applicant’s representative but was not successful as their offices were closed. On the same day, correspondence was sent to the Applicant’s representative via email. The email alerted the Applicant to the fact that his application was incomplete as his Form F8 indicated that a fee waiver had been completed, but it was not attached. The Commission requested that a completed application with a filled-out Form F80 be returned within 14 days (or by Friday 9 June) for the matter to progress.
On 30 May 2023, the Commission called the Applicant at his nominated phone number, but the call was not answered. A voicemail was left quoting the matter number and asking the Applicant to either contact the Commission at the provided callback number or email a completed Form F80.
On 2 June 2023, correspondence was sent to the Applicant at his nominated email address alerting him to the fact that his application was incomplete as his Form F8 indicated that a fee waiver had been completed, but it was not attached. The Commission requested that a completed application with a filled-out Form F80 be returned within 14 days (or by Friday 16 June) for the matter to progress. On the same day, an SMS was sent to both the Applicant and the Applicant’s representative requesting a call back regarding the incomplete application.
On 14 June 2023, the Commission called the Applicant at his nominated phone number. The call was answered but was disconnected after the Commission identified itself. A follow-up phone call was unsuccessful. On the same day, the Commission called the Applicant’s representative, but the call was not answered. A voicemail was left requesting a call back regarding the Applicant’s incomplete application.
On 26 June 2023, the Commission made a final attempt to call the Applicant, but the call was not answered. A voicemail was left advising the Applicant to return a completed Form F80 fee waiver by COB 27 June 2023 or his matter would be referred to a Commission member and likely dismissed. On the same day, the Commission called the Applicant’s representative and advised that a Form F80 was still outstanding. The Applicant’s representative informed the Commission that it would contact the Applicant and attempt to get him to send his Form F80 directly to the Commission.
To date, the Applicant has not paid the required lodgement fee or filed a completed waiver application.
Legislative framework
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.
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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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
The applicant has neither paid the lodgement fee nor sought a fee waiver. Accordingly, the application is not made in accordance with s.367 of the Act.
The applicant has taken no action to address the deficiency despite being notified of it 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.
The application is dismissed.
VICE PRESIDENT
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