Michael Bartz v Toncra Contracting Pty Ltd Summary

[2023] FWC 3298

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Michael Bartz
v

Toncra Contracting Pty Ltd

(C2023/5984)

VICE PRESIDENT CATANZARITI

SYDNEY, 8 DECEMBER 2023

Application to deal with contraventions involving dismissal – application dismissed.

On 27 September 2023, Mr Michael Bartz (applicant) has made an application under s.365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that he was dismissed in contravention of the general protection provisions in Part 3-1 of the Act.

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 lodgement fee (waiver application). The applicant has not responded to correspondence from the Commission alerting him to this deficiency, nor has the deficiency been rectified. I have decided to dismiss the application for the following reasons.

Context

On 8 October 2023, the Commission emailed correspondence to Mr Bartz’s nominated email address advising that his application required payment of the filing fee or a completed waiver form if he wished to proceed with the application. The email further stated as follows:

“Please pay the application fee within 7 calendar days (or apply to have the fee waived) so we can progress your case.

If you don’t make payment within 7 days your application may be dismissed.”

An SMS notification was also sent to Mr Bartz’s nominated telephone number on 9 October 2023. The SMS advised Mr Bartz to take action in compliance with the email from the Commission regarding payment of the application fee.

On 17 October 2023, the Commission emailed correspondence to Mr Bartz’s nominated email address reminding that his application required payment of the filing fee or a completed waiver form if he wished to proceed with the application. The correspondence instructed the applicant on how to pay the application fee or make a waiver application and further stated as follows:

“Reminder: You need to pay the application fee (or apply to have the fee waived) or your application may be dismissed.”.

On 23 October 2023, the Commission attempted twice to contact Mr Bartz on his nominated telephone number to obtain payment or a completed waiver form. However, the call was not answered. A voicemail message was left advising Mr Bartz that payment of the required fee was still outstanding and to refer to the previous correspondence emailed by the Commission. The fee waiver application option was also explained. The voicemail also advised if the payment is not received by 27 October 2023, the matter will be referred to a Member of the Commission who may dismiss the matter and a decision published on the website. The matter and Helpline numbers were also quoted.

A final attempt to contact Mr Bartz on his nominated telephone number was made by the Commission on 27 October 2023 to obtain a method of service for the Respondent. However, the call was not answered, and a voicemail message was left advising Mr Bartz to provide the missing information, otherwise, the matter may be dismissed.

To date, the applicant has not paid the 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 $83.30. 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

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Michael Bartz has brought an application against Toncra Contracting Pty Ltd, contesting a dismissal he claims contravenes the general protections under Part 3-1 of the Fair Work Act 2009. The application was lodged under section 365 of the Act but was not accompanied by the requisite fee or a completed waiver application. Despite multiple communications from the Commission, Mr Bartz did not rectify this deficiency, leading to the current dismissal of his application. The Commission had repeatedly notified Mr Bartz via email and SMS of the need to either pay the application fee or apply for a waiver. Despite these notifications and a final voicemail reminder, Mr Bartz failed to take any action to address the fee issue.

The primary legal issue before the Commission was whether the application could be dismissed due to the absence of the required fee or a completed waiver application, as stipulated by section 367 of the Act. The Commission noted that section 587 of the Act allows for the dismissal of applications not made in accordance with the Act, which in this case, included the failure to include the prescribed fee or a waiver application. The Commission considered that despite multiple reminders, Mr Bartz had not rectified the deficiency, thereby failing to comply with the Act. Given this non-compliance and the absence of any reasonable prospects of success due to the procedural default, the Commission exercised its discretion to dismiss the application.

The Vice President of the Fair Work Commission, Catanzariti, concluded that the application was not in accordance with the Act due to the missing fee or waiver application. Mr Bartz had been notified of the deficiency on multiple occasions but failed to take any corrective action. As a result, the application was dismissed under section 587(1)(a) of the Act. The dismissal was based on the procedural default, as the application did not comply with the legislative requirements. The Commission's decision reflects the importance of adhering to the procedural requirements when lodging applications, and the dismissal was a direct consequence of Mr Bartz's failure to address the identified deficiency.

Michael Bartz v Toncra Contracting Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established