Michael Walker v Rns Personnel

[2019] FWC 5073

[2019] FWC 5073

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Michael Walker
v
Rns Personnel
(C2019/2806)

DEPUTY PRESIDENT KOVACIC CANBERRA, 6 AUGUST 2019

Application to deal with contraventions involving dismissal.

[1] Mr Michael Walker (the Applicant) made an application by telephone with the Fair Work Commission (the Commission) on 1 May 2019 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Rns Personnel(the Respondent) in contravention of the general protections provisions in the Act.

[2] Rule 9 of the Fair Work Commission Rules 2013 provides that:

“9 Telephone applications

…

(3) The Commission must prepare a written application for the person, based on the telephone application, and give the written application to the person.

(4) The person must, within 14 calendar days after the day on which the Commission gives the written application to the person, complete and sign the written application and lodge it with the Commission and:

(a) pay:

(i) for an application under section 365 of the Act—the fee mentioned in regulation 3.02 of the Regulations; or

(ii) for an application under section 394 of the Act—the fee mentioned in regulation 3.07 of the Regulations; or

(b) apply for a waiver of the fee.”

[3] The Commission forwarded a copy of the Form F8 was to the Applicant on 2 May 2019 by Express Post, with confirmation received on 6 May 2019 that the letter had been delivered.

[4] In the absence of a completed application having been returned to the Commission, the Applicant was contacted on 23 May 2019 and was informed that if a response was not received the application may be dismissed. The Commission contacted the Applicant again on 12 June 2019 in relation to the incomplete application, during this call the Applicant indicated that he had difficulties completing the application. To that end, it was explained to the Applicant that he could contact a local Community Legal Service or a friend or family member might be able to assist him complete the application. He confirmed that he would post the documentation the next day.

[5] Despite the Applicant’s advice the Commission has not received a completed waiver form or lodgement fee payment.

[6] 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.”

[7] 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.”

[8] Mr Walker 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 s.587(1)(a) of the Act. An order to that effect will be issued with this decision.

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