[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 (07) 3028 7815 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

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

Printed by authority of the Commonwealth Government Printer

Mr David Christoffelsz filed an application in the Administrative Appeals Tribunal (AAT) against George's Paragon, seeking to deal with other contraventions related to an existing dispute. The Tribunal was required to assess whether the application complied with the relevant statutory provisions and determine if it could proceed to the merits of the application. The primary issue before the Tribunal was whether Mr Christoffelsz's application was made in accordance with the requirements of the Administrative Appeals Act 1975 (Cth).

The Tribunal considered that the application was not made in accordance with the Act, as it failed to comply with the specific procedural requirements outlined in the legislation. The Tribunal found that Mr Christoffelsz did not provide the necessary information and documentation required by the Act, and therefore, the application did not meet the necessary criteria for the Tribunal to hear the matter. As a result, the Tribunal dismissed the application and found that it could not proceed to the merits of the dispute.

The Tribunal's decision was based on the strict interpretation of the statutory requirements for filing an application under the Act. The Tribunal found that the application was not in the proper form and did not contain the necessary information, which made it impossible for the Tribunal to properly assess the merits of the case. The Tribunal dismissed the application and noted that the applicant had the right to lodge a new application that complied with the requirements of the Act.

The Tribunal did not make any orders regarding the merits of the dispute, as the application was dismissed on procedural grounds. Mr Christoffelsz was advised that he could lodge a new application that complied with the requirements of the Act, and the Tribunal would then be able to assess the merits of the case. The Tribunal's decision was based on the strict interpretation of the statutory requirements and did not consider the merits of the dispute.

Mr David Christoffelsz v George's Paragon

DECISION

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