Minhazul Islam v Ua Australia Pty Ltd

[2024] FWC 2310

[2024] FWC 2310

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Minhazul Islam
v

UA Australia Pty Ltd

(C2024/4432)

DEPUTY PRESIDENT EASTON SYDNEY, 29 AUGUST 2024

Application to deal with contraventions involving dismissal – application dismissed.

1. On 27 June 2024, Mr Minhazul Islam made an application under s.365 of the Fair Work Act 2009 (Cth). Mr Islam alleges that he was dismissed in contravention of the general protection provisions in Part 3-1 of the Act.

1. For the reasons that follow I am satisfied that Mr Islam’s application has not been made in accordance with the Act and that it is appropriate to dismiss the application.

1. The application form filed by Mr Islam was incomplete in the following ways:

   a)   he did not provide the completed waiver (or payment of the application fee); and

   b)   almost none of the questions on the Form F8 application were answered.

1. Commission staff contacted Mr Islam on the following dates:

   ·   2 July 2024 by telephone and SMS;

   ·   5 July 2024 by telephone;

   ·   17 July by telephone; and

   ·   2 August 2024 by telephone.

1. Mr Islam has been on notice of the likely consequences of his application remaining incomplete.

1. Mr Islam did respond to the Commission on 29 July 2024 and correspondence was resent to request payment or a completed waiver form. Mr Islam also rang the Commission on 6 August 2024 to advise that he had been unable to submit the completed application and sought an extension. 

1. To date there has been no further response from Mr Islam, no fee paid and no waiver request received.

1. Section 587 of the Act includes the following provisions:

“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.

…

(3)       The FWC may dismiss an application:

(a)       on its own initiative; or

(b)       on application.”

1. Mr Islam’s application was not made in accordance with the Act (per s.587(1)(a)). Section 587 confers a discretion on the Commission to dismiss Mr Islam’s application.

1. Mr Islam has been given ample opportunity to rectify the deficiency in the application (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [15]-[16] and the cases cited therein). The Commission’s inquiries and warnings have largely been ignored.

1. In the circumstances I am satisfied that Mr Islam’s application should be dismissed.

1. The application is dismissed.

DEPUTY PRESIDENT

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