Minh Cao v CCMSM Manufacturing Pty Ltd

[2019] FWC 8076

[2019] FWC 8076

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Minh Cao
v
CCMSM Manufacturing Pty Ltd
(C2019/6300)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 13 DECEMBER 2019

Application to deal with contraventions involving dismissal.

[1] Mr Minh Cao (Applicant) has made an application under s.365 of the Fair Work Act 2009 (Act). He alleges that he was dismissed by CCMSM Manufacturing Pty Ltd (Respondent) in contravention of the general protection provisions of the Act.

[2] I have decided to dismiss the application. The Applicant has failed to pay the lodgement fee or file a completed application for waiver of the lodgement fee (waiver application). The reasons for this decision follow.

Context

[3] The application was received by the Commission on 11 October 2019.

[4] On 14 October 2019 the Commission:

(a) telephoned the Applicant to discuss payment of the lodgement fee. The call was terminated almost immediately upon the Applicant answering; and

(b) emailed to the Applicant and his representative, Ms Vanessa Nikolovska of Unfair Dismissals Direct, a letter advising that he must pay the lodgement fee or file a waiver application within 14 days, or the application may be dismissed.

[5] In the absence of compliance by the Applicant or his representative, the Commission telephoned the Applicant and his representative as follows:

(a) on 23 October 2019, the Commission telephoned the Applicant. A voicemail message was left requesting a return call; and

(b) on 29 October 2019, the Commission telephoned the Applicant and Ms Nikolovska. Both calls were unanswered.

[6] On 30 October 2019, the Commission:

(a) telephoned the Applicant and Ms Nikolovska. A voicemail message was left following each call, asking that contact be made with the Commissions as the application remained incomplete and may be dismissed; and

(b) emailed a letter to the Applicant and to Ms Nikolovska. The letter foreshadowed that in the absence of payment of the lodgement fee, or the filing of a waiver application within seven days, the application may be dismissed. An automated failure to deliver message was received indicating that the email could not be delivered to Ms Nikolovska. A copy of the letter was posted to Unfair Dismissals Direct and also to the Applicant.

[7] On 6 November 2019, the Commission telephoned the Applicant. During the call, the Applicant was advised that to proceed with his application, he must pay the lodgement fee or file a waiver application by 16:00 the same day, otherwise his application may be dismissed. The Applicant advised that he would contact the Commission at or about midday.

[8] In the absence of a return call, the Commission telephoned the Applicant the same day. A voicemail message was left advising that if the Applicant did not contact the Commission by close of business regarding his incomplete application, it may be dismissed.

[9] To date, the Applicant has not contacted the Commission, and has not paid the lodgement fee or filed a waiver application.

Legislative framework

[10] 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)

[11] 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

[12] The Applicant has failed to pay the lodgement fee or file a waiver application. Accordingly, the application is incomplete. The Applicant or his representative have not responded to numerous attempts by the Commission to contact them regarding the incomplete application.

[13] 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.

[14] An order giving effect to this decision will be issued separately.

DEPUTY PRESIDENT

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