Mr David Christoffelsz v George's Paragon

[2019] FWC 10

[2019] FWC 10

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 372 - Application to deal with other contravention disputes

Mr David Christoffelsz
v
George's Paragon
(C2018/6013)

DEPUTY PRESIDENT SAMS SYDNEY, 4 JANUARY 2019

Application to deal with other contraventions dispute – application not made in accordance with the Act – application dismissed.

[1] On 26 October 2018, Mr David Christoffelsz (the applicant) applied under s 372 of the Fair Work Act 2009 (Cth) (the Act) seeking to have the Fair Work Commission (the Commission) deal with a general protections dispute against his employer, George’s Paragon.

[2] An application fee of $71.90 must be paid with an application for the Commission to deal with a general protections dispute. The applicant failed to do so. On 26 October 2018, the Commission contacted the applicant by telephone to raise the non-payment issue and also sent him the following letter:

Dear Mr Christoffelsz,

Application for the Fair Work Commission to deal with a General Protections Dispute

Title: Christoffelsz v George's Paragon

Fair Work Commission Matter Number: C2018/6013

The Fair Work Commission (the Commission) received a general protections dispute application from you on 26 October 2018.

As per our telephone conversation on 26 October 2018 This application was incomplete, with some questions of the Form F2 not completed. Please complete:

The contact person details for the Respondent, including, phone number, and if possible, an email address or fax number

These sections will need to be completed and the Form returned to the Fair Work Commission (a copy of the application is attached).

AND

This application was made without payment of the application fee of $71.90. You can apply to have the application fee waived if paying the fee would cause you serious hardship. The Form F80 - Waiver of application fee is attached.

If you wish to proceed with the above claim please forward the necessary documentation, with payment if required or a completed application for waiver as soon as possible, quoting Matter Number C2018/6013.

In the absence of any advice from you within 14 days of the date of this letter, this application may be dismissed.

For more information you can telephone the Commission on [phone] or go to sincerely,

Fair Work Commission

[3] On 8 November 2018, the Commission left a voice mail for the applicant regarding the non-payment issue and again sent him a letter, in similar terms to the letter quoted above, warning the applicant that his application may be dismissed if the application fee is not paid.

[4] On 12 November 2018, the Commission left another voice message for the applicant seeking payment of the application fee. Two further attempts were made to contact the applicant on 21 November 2018 and 30 November 2018 and voice messages were left. To date there has been no response.

[5] I am satisfied that the applicant has failed to pay the application fee that attaches to a general protections dispute and has not sought a waiver of the fee.

[6] I am further satisfied the applicant has made no attempt to contact the Commission, after having been invited to do so on multiple occasions.

[7] Section 587(1) of the Act reads:

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.

[8] Section 587(1) does not limit the circumstances in which the Commission may dismiss an application and plainly the Commission may do so when an application is not made in accordance with the Act (s 587(1)(a)). Failing to pay the application fee falls within this subsection.

[9] Accordingly, it is appropriate that I dismiss the application.

[10] I order that Mr Christoffelsz’s application (C2018/6013) is dismissed pursuant to s 587(1)(a) of the Act.

DEPUTY PRESIDENT

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