Mr Brian France v Bob's Seafood

[2015] FWC 5412

[2015] FWC 5412

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.773 - Application to deal with an unlawful termination dispute

Mr Brian France
v
Bob’s Seafood
(C2015/4418)

DEPUTY PRESIDENT ASBURY MELBOURNE, 22 SEPTEMBER 2015

Application to deal with an unlawful termination dispute.

[1] On 21 June 2015, Mr Brian France filed an application pursuant to s.773 of the Fair Work Act 2009 (the Act) alleging unlawful termination of his employment. Also on 21 June 2015, Mr France filed an application for unfair dismissal remedy under s 394 of the Act and a general protections application involving dismissal under s.365 of the Act. All of Mr France’s applications were incomplete in that no payment of the lodgement fees, or applications for waiver of the lodgement fees, was received. All of Mr France’s applications also appeared to have been lodged outside of the relevant timeframes prescribed by the Act. This Decision concerns Mr France’s application pursuant to s.773 of the Act only.

[2] Mr France’s unlawful termination application appears to have some difficulties because of the operation of s.723 of the act in that Mr France is likely to be a person who was entitled to make a general protections court application in relation to his dismissal. A further complication arises for Mr France in that s.725 prevents a person who has been dismissed from making multiple applications in relation to the same matters.

[3] On 22 June 2015, staff of the Industrial Registry contacted Mr France by telephone to advise that s.725 of the Act prevented him from filing multiple applications in relation to his dismissal. Mr France was also advised that the applications were otherwise incomplete. Mr France was given time to consider the matters further.

[4] On 6 July 2015, staff of the Industrial Registry telephoned Mr France regarding his applications. Mr France advised that he had a meeting with a community legal centre on 9 July 2015 and would advise the Commission of his intentions following this appointment.

[5] On 21 July 2015, staff of the Industrial Registry again contacted Mr France by telephone. Mr France did not answer this call. A letter was sent to Mr France by email, again confirming that Mr France was unable to proceed with all three applications, he had not indicated to the Commission whether he wished to proceed with any application and that in any event he had not paid the required filing fee.

[6] On 3 August 2015, the Industrial Registry again contacted Mr France by telephone. Mr France did not answer this call and a message was left for Mr France.

[7] No further response has been received from Mr France.

[8] 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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(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.”

[9] In relation to an application made pursuant to s.773 of the Act, s.775 provides:

“775 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 773; 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.”

[10] Section 723 of the Act provides:

“723 Unlawful termination applications

A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.”

[11] Mr France has failed to comply with s.775(1) of the Act and has not made application to have the prescribed fee waived.

[12] Mr France has also failed to rectify the prima facie jurisdictional issue in relation to the application in that it is more than probably that he is a person entitled to make a general protections court application in relation to the impugned conduct of the Respondent.

[13] I note that, Mr France has filed multiple applications in relation to the same matters. Those applications may also be dismissed if Mr France does not take the required steps in relation to them.

[14] In the circumstances I am satisfied that Mr France’s unlawful termination application has not been made in accordance with the Act. The Application in C2015/4418 is dismissed pursuant to ss.587(1)(a).

DEPUTY PRESIDENT

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