Michael Elliott v Cranserve Pty Ltd

[2022] FWC 2045

[2022] FWC 2045

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Michael Elliott
v

Cranserve Pty Ltd

(C2022/2676)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 3 AUGUST 2022

Application to deal with contraventions involving dismissal – application dismissed.

1. Mr Michael Elliot (applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that he was dismissed by Cranserve Pty Ltd in contravention of the general protection provisions in Part 3-1 of the Act.

1. 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

1. The application was received by the Commission on 28 April 2022, it being filed by the applicant’s representative. The application was incomplete as it was missing essential information and it was not accompanied by payment of the application fee or a waiver application. In the lodgement email, the representative stated that, “Mr Elliott will attend to the filing fee or complete a fee waiver form for the $74.90 filing fee.”

1. On 3 May 2022 the Commission telephoned the applicant and left a voicemail requesting a return call in relation to the payment of the filing fee. A text message was also sent to the applicant to this effect. The Commission also sent a letter by email to both the applicant and the applicant’s representative with information on how to pay the filing fee and how to make a waiver application. The letter stated as follows:

“You have until Tuesday 17 May 2022 to pay the fee or apply for a waiver.

If you don’t do this, your application may be dismissed. Please contact us if you have any questions about this.”

(emphasis omitted)

1. A further telephone call was made to the applicant on 17 May 2022. A voicemail was left requesting a return call by close of business that day otherwise the matter may be dismissed.

1. On 20 May 2022, a further voicemail in relation to the non-payment of the application fee was left with the applicant. The Commission also sent a letter to the applicant and the applicant’s representative advising how to pay the application fee or make a waiver application.

1. On 25 June 2022, an email was sent by the Commission to the applicant and his representative advising that the matter was being considered for dismissal for failure to pay the application fee or make a waiver application.

1. On 2 August 2022, a final call was made to the applicant by the Commission, with no voicemail being left.

1. To date, the applicant has not paid the filing fee or filed a completed waiver application.

Legislative framework

1. 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 $74.90. The regulations also allow for an application to be made for the fee to be waived.

1. 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.

(emphasis added)

Consideration and conclusion

1. The applicant has neither paid the filing fee or sought a fee waiver. Accordingly, the application is not made in accordance with s 367 of the Act.

1. 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.

1. The application is dismissed.

DEPUTY PRESIDENT

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