Michael Dolan v The Trustee for Sapra Family Trust T/A Crust Gourmet Pizza Bar

[2017] FWC 6713

[2017] FWC 6713

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Michael Dolan
v
The Trustee for Sapra Family Trust T/A Crust Gourmet Pizza Bar
(C2017/2537)

DEPUTY PRESIDENT KOVACIC CANBERRA, 14 DECEMBER 2017

Application to deal with contraventions involving dismissal - invalid application - application dismissed.

[1] Mr Michael Dolan (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 12 May 2017 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by The Trustee for Sapra Family Trust T/A Crust Gourmet Pizza Bar (the Respondent) in contravention of the general protections provisions in the Act. Mr Dolan’s application was incomplete in that the application was unsigned and no payment or application for waiver of the lodgment fee was comprovided.

[2] On 16 May 2016 the Commission contacted Mr Dolan via email regarding his application. Mr Dolan was asked to provide the Commission with a signed application and payment or an application for waiver of the lodgment fee within 14 days or his application may be dismissed. The Commission then contacted Mr Dolan by telephone where he advised that he would make payment the following week.

[3] On 22 May 2017 the Applicant’s representative provided the Commission with a signed application. The Applicant’s representative was then advised by telephone that once Mr Dolan made payment that the application would be progressed.

[4] On 23 May 2017 the Commission emailed Mr Dolan’s representatives asking that they contact the Commission to arrange payment of the lodgment fee.

[5] On 25 May 2017 the Commission contacted Mr Dolan and his representative by email regarding the application. The correspondence reiterated previous advice that the application may be dismissed unless Mr Dolan either completed the waiver form or paid the lodgement fee.

[6] On 25 May 2017 Mr Dolan contacted the Commission by telephone and advised that he would submit an application for waiver of the lodgment fee

[7] On 29 May 2017 the Commission emailed Mr Dolan a copy of an application for waiver of the lodgment fee.
[8] The Commission subsequently attempted to contact Mr Dolan on a number of occasions, i.e. 1, 7, 14 and 19 June 2017 by telephone and email regarding his application.

[9] On 19 July 2017 Mr Dolan contacted the Commission and advised that he would submit an application for waiver of the lodgement fee the following day. An email was subsequently sent providing Mr Dolan with a copy of an application for waiver of the lodgment fee, the correspondence also foreshadowed that Mr Dolan’s application may be dismissed unless he completed either the waiver form or paid the lodgement fee.

[10] On 30 November 2017 the Commission contacted Mr Dolan by telephone regarding his application. Mr Dolan again advised that he will submit an application for fee waiver. An email was subsequently sent, reiterating previous advice that his application may be dismissed unless he either completed the waiver form or paid the lodgement fee.

[11] Despite these repeated requests the Commission has received no completed waiver form or lodgment fee payment from Mr Dolan.

[12] 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

(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.”

[13] 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.”

[14] Mr Dolan 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.

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