Micheal Majed v Hanson Construction Material Pty Ltd

[2019] FWC 3038

[2019] FWC 3038

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Micheal Majed
v
Hanson Construction Material Pty Ltd
(C2019/1591)

DEPUTY PRESIDENT KOVACIC CANBERRA, 3 MAY 2019

Application to deal with contraventions involving dismissal.

[1] Mr Micheal Majed (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 12 March 2019 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Hanson Construction Material Pty Ltd (the Respondent) in contravention of the general protections provisions in the Act. Mr Majed’s application was incomplete in that no payment or application for waiver of the lodgement fee was completed.

[2] On 13 March 2019, the Commission contacted the Applicant to advise him that the lodgement fee remained unpaid. The Applicant advised he would look at the waiver form and send it back to the Commission. The Commission subsequently emailed a letter to the Applicant and the Applicant’s representative with a copy of the waiver form.

[3] Also on 13 March 2019 the Applicant’s representative emailed the Applicant requesting he make payment or fill out a fee waiver form, with the Commission copied in on that email.

[4] On 27 March 2019, the Commission attempted to telephone the Applicant but the phone was disconnected.

[5] On 27 March 2019, the Commission emailed the Applicant’s representative to advise the matters remains unpaid and no fee waiver form had been received to date.

[6] On 5 April 2019 and 12 April 2019, the Commission telephoned the Applicant and a voicemail message was left asking the Applicant to contact the Commission.

[7] On 12 April 2019, the Commission forwarded email correspondence to the Applicant and the Applicant’s representative which foreshadowed that the application may be dismissed unless Mr Majed either completed the waiver form or paid the lodgement fee. Despite these repeated attempts to contact Mr Majed, the Commission has received no completed waiver form or lodgement fee payment.

[8] On 23 April 2019, the Commission contacted the Applicant and a message was left advising that multiple attempts had been made to contact him and that the matter would be referred to a Member for consideration.

[9] No correspondence has been received from the Applicant or the Applicant’s representative since 23 April 2019.

[10] 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.”

[11] 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.”

[12] Mr Majed 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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