Mitchell Weston v Acrworld Pty Limited

[2022] FWC 945

[2022] FWC 945

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Mitchell Weston
v

ACRWORLD Pty Limited

(C2022/1433)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 3 MAY 2022

Application to deal with contraventions involving dismissal

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

2. 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 25 February 2022.

1. On 28 February 2022, the Commission telephoned the applicant. There was no response. A voice message was left requesting the applicant telephone the Commission to discuss the application and payment of the outstanding lodgement fee. On this day, the Commission also sent the applicant:

(a)   a text message concerning the unpaid lodgement fee; and

(b)   email correspondence requesting payment of the lodgement fee or provision of a waiver application by 14 March 2022.

1. On 15 March 2022, the Commission telephoned the applicant. The applicant said that he would pay the outstanding lodgement fee that day. The applicant was informed that if the Commission did not hear from him by close of business on 17 March 2022 the application may be dismissed.

1. In the absence of compliance, on 21 March 2022 the Commission:

   (a)   telephoned the applicant. A voice message was left advising that the application was at risk of dismissal and the applicant had seven days to pay the outstanding lodgement fee; and

   (b)   issued correspondence by email to the applicant advising that the application is incomplete and required resolution by 28 March 2022. The correspondence explained how the applicant could apply to have the lodgement fee waived.

1. On 1 April 2022, the Commission telephoned the applicant. The applicant said he could not pay the outstanding lodgement fee. The process for applying for a fee waiver was explained to the applicant. The applicant said he would lodge a waiver application that day.

1. In the absence of receipt of a waiver application, the Commission:

(a)   telephoned the applicant on 5 April 2022. A voice message was left requesting a response by 7 April 2022;

(b)   issued email correspondence to the applicant on 8 April 2022 advising that the application was at risk of being dismissed;

(c)   telephoned the applicant on 20 April 2022. A voice message was left requesting an urgent return call as the application was at risk of dismissal.

1. To date, the Commission has not received payment of the lodgement fee or a completed waiver application. The applicant has not made any submissions as to why the application should not be dismissed.

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.

2. Section 587 of the Act provides as follows:

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 disposition

1. The applicant has neither paid the lodgement fee nor sought a fee waiver. Accordingly, the application is not made in accordance with s 367 of the Act. 

2. 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.

3. The application is dismissed.

DEPUTY PRESIDENT

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