Mathew Fuller v Wayne Cleaning Systems Pty Ltd

[2021] FWC 4542

[2021] FWC 4542

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Mathew Fuller
v
Wayne Cleaning Systems Pty Ltd
(C2021/3372)

DEPUTY PRESIDENT COLMAN MELBOURNE, 28 JULY 2021

Application to deal with contraventions involving dismissal – application dismissed

[1] Mr Mathew Fuller (applicant) has made an application under s 365 of the Fair Work Act 2009 (Act) alleging that he was dismissed by Wayne Cleaning Systems Pty Ltd (respondent) wholly or partly for a proscribed reason in contravention of the general protections provisions in Part 3-1 of the Act. The application was not accompanied by the fee prescribed by the regulations.

[2] On 12 July 2021, the Commission sent to the applicant a letter noting that the application was made without payment of the required fee, and that the applicant could apply for the fee to be waived if the fee would cause serious hardship. The letter stated that if the applicant did not reply by 19 July 2021, the application may be dismissed.

[3] The applicant has not paid the lodgement fee or submitted a completed waiver application. He has not made any submissions as to why his application should not be dismissed.

[4] 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.”

[5] Section 367 states that an application under s 365 ‘must be accompanied by any fee prescribed by the regulations’. At the time the application was made, the regulations prescribed a fee of $74.50. The regulations also allow for an application to be made for the fee to be waived. The applicant has neither paid the fee nor lodged a completed fee waiver application. The application did not comply with s 367 of the Act. This deficiency engages s 587(1)(a): the application was not made in accordance with the Act.

[6] If an application has not been made in accordance with the Act, the Commission has a discretion to dismiss the application. I have decided to exercise this discretion because it is fair and reasonable to do so. The applicant was notified that the application was not accompanied by the required fee and no action was taken to address the deficiency within a reasonable time.

[7] I dismiss the application in accordance with s 587(1)(a) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR732211>