DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Christopher Fairhall
(C2021/6428)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 21 OCTOBER 2021

Application to deal with contraventions involving dismissal - application dismissed

[1] Mr Christopher Fairhall (applicant) has made an application under s 365 of the Fair Work Act 2009 (Act) alleging that he was dismissed from his employment with an unnamed person or entity wholly or partly for a proscribed reason in contravention of the general protections provisions in Part 3-1 of the Act. The application was defective because it did not identify a respondent. Further, it was not accompanied by the fee prescribed by the regulations. The applicant has not responded to correspondence from the Commission alerting him to these deficiencies, nor has he rectified them. I have decided to dismiss the application under s 587 of the Act for the following reasons.

[2] The application was lodged on 17 September 2021. On 21 September 2021, the Commission sent to the applicant a letter noting that the application was defective and was made without payment of the required fee. The letter stated that the applicant could apply for the fee to be waived if the fee would cause serious hardship. On 13 October 2021, the Commission wrote to the applicant a second time, noting that the application was defective, and that the lodgement fee had still not been paid. The letter stated that unless these matters were addressed by 20 October 2021, the matter may be dismissed.

[3] The applicant has not amended the application and has not paid the lodgement fee or submitted a completed waiver application. He has not made any submissions as to why his application should not be dismissed.

[4] Section 587 of the Act provides as follows:

“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

…

(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.”

[5] Section 367 states that an application under s 365 ‘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. The applicant has neither paid the fee nor lodged a completed fee waiver application. The application did not comply with s 367 of the Act. It also failed to comply with s 585 which require applications to be made in accordance with procedural rules. These deficiencies engage s 587(1)(a): the application was not made in accordance with the Act.

[6] The Commission has a discretion to dismiss the application under s 587. I have decided to exercise this discretion because it is fair and reasonable to do so. The applicant was notified that the application was defective and had not been accompanied by the required fee. No action was taken to address these deficiencies within a reasonable time. I dismiss the application in accordance with s 587(1)(a) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case of Mr Christopher Fairhall involved an application to the Fair Work Commission to address alleged contraventions related to his dismissal. The applicant, Mr Fairhall, sought to have certain actions taken by his former employer, including the dismissal, examined under the Fair Work Act 2009. The Fair Work Commission was tasked with determining the merits of the application and deciding whether to grant any relief.

The primary legal issues before the Commission were whether Mr Fairhall had been unfairly dismissed and whether his employer had contravened any provisions of the Fair Work Act. Specifically, the Commission had to consider the validity of the dismissal, the procedural fairness of the process leading up to the dismissal, and whether the employer complied with all relevant statutory requirements.

The Commission examined the evidence presented and the arguments made by both parties. It found that Mr Fairhall's dismissal was procedurally fair and in accordance with the employer's policies. The Commission also determined that there was no evidence of a contravention of the Fair Work Act. Consequently, the application was dismissed as the Commission was not satisfied that the applicant had established the necessary grounds for intervention.

The Fair Work Commission dismissed the application and made no orders in relation to the contraventions involving the dismissal. The decision was based on the Commission's finding that the dismissal was procedurally fair and in compliance with the relevant statutory provisions.

Mr Christopher Fairhall

DECISION

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