Michael Carstairs v Double View Developments Pty Ltd

[2021] FWC 602

[2021] FWC 602

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Michael Carstairs
v
Double View Developments Pty Ltd
(C2020/8284)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 25 FEBRUARY 2021

Application to deal with contraventions involving dismissal.

[1] Mr Michael Carstairs (Applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). He alleges that he was dismissed by Double View Developments Pty Ltd in contravention of the general protection provisions of the Act.

[2] I have decided to dismiss the application. The reasons for this decision follow.

Context

[3] The application was received by the Commission on 10 November 2020.

[4] On 11 November 2020, the Commission contacted the Applicant regarding the unpaid lodgement fee as follows:

(a) by telephone at 2.16 pm. The call was unanswered, and a voicemail message was left requesting the Applicant contact the Commission.

(b) by letter emailed to the Applicant and to his representative, Employee Dismissal Claims at 2.18 pm, advising that the Applicant must pay the lodgement fee or file a completed application for waiver of the lodgement fee (waiver application) within 14 days, or the application may be dismissed.

(c) by SMS text message at 4.01 pm to the Applicant’s nominated contact number, requesting the Applicant contact the Commission because of a problem with his application.

[5] On 23 November 2020, the Commission telephoned the Applicant regarding the incomplete application, however the call was unanswered, and a voicemail message was left requesting the Applicant contact the Commission.

[6] In the absence of payment of the lodgement fee or receipt of a completed waiver application, the Commission contacted the Applicant on 24 November 2020 as follows:

(a) by telephone at 9.33 am. The call was unanswered, and a voicemail message was left requesting the Applicant contact the Commission regarding his incomplete application, which may be dismissed.

(b) by letter emailed to the Applicant and his representative at 9.33 am, advising that the Applicant must pay the lodgement fee or file a completed waiver application within 14 days, or the application may be dismissed.

(c) by SMS text message at 1.03pm to the Applicant’s nominated contact number, requesting the Applicant contact the Commission because of a problem with his application.

[7] On 21 December 2020, the Commission telephoned the Applicant regarding the incomplete application. During the telephone call, the Applicant is said to have advised that he had in fact attempted to make payment of the lodgement fee, however his phone had been hacked. The Applicant advised that payment would be made by 31 December 2020.

[8] To date, neither the Applicant nor his representative have paid the lodgement fee or filed a completed waiver application.

Legislative framework

[9] 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.

(emphasis added)

[10] Section 587 of the Act provides that:

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.

(emphasis added)

Consideration and conclusion

[11] Despite the Commission’s attempts to progress the application, the Applicant and his representative have failed to pay the lodgement fee or file a completed waiver application. Accordingly, the application is incomplete.

[12] In these circumstances, I am satisfied that the Applicant has failed to comply with s 367(1). Accordingly, the application has not been made in accordance with the Act. It is therefore dismissed pursuant to s 587(1)(a) of the Act.

DEPUTY PRESIDENT

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