Mr Fatih Cengiz v Qantas Ground Services

[2021] FWC 903

[2021] FWC 903

FAIR WORK COMMISSION

DECISION

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

Mr Fatih Cengiz
v
Qantas Ground Services
(C2020/5607)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 25 FEBRUARY 2021

Application to deal with contraventions involving dismissal.

[1] Mr Fatih Cengiz (Applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). He alleges that he was dismissed by Qantas Ground Services in contravention of the general protection provisions of the Act.

[2] I have decided to dismiss the application. The reasons for this decision follow.

Context

[3] The application was received by the Commission on 17 July 2020.

[4] On 20 July 2020, the Commission telephoned the Applicant regarding the unpaid lodgement fee. During the telephone call, the Applicant advised that he did not have his credit card available and that he would contact the Commission later in the day to effect payment.

[5] Subsequently, a letter was emailed to the Applicant advising that he must pay the lodgement fee or file a completed application for waiver of the lodgement fee (waiver application) within 14 days, or the application may be dismissed. A SMS text message was also sent to the Applicant’s nominated contact number requesting that he contact the Commission because of a problem with his application.

[6] By 3 August 2020, the lodgement fee had not been paid, nor had a completed waiver application been received. The Commission telephoned the Applicant that day, however the call was unanswered. A voicemail message was left advising that the application remained incomplete and may be dismissed. The Applicant was requested to contact the Commission.

[7] On 4 August 2020, a letter was emailed to the Applicant providing a further seven days for the lodgement fee to be paid or a completed waiver application to be filed. The letter stated that in the absence of any advice from the Applicant within this period, the application may be dismissed.

[8] Later that day the Commission telephoned the Applicant, and he provided his credit card details to pay the lodgement fee. However, while the payment was being processed, the Applicant ended the telephone call abruptly. A “Do Not Honour” message was received signifying that the Applicant’s credit card was rejected, and payment of the lodgement fee was unsuccessful. Immediately thereafter, a telephone call was made to the Applicant. The call was unanswered, and a voicemail message was left advising the Applicant that the lodgement fee was not paid because of an error. The Applicant was requested to contact the Commission.

[9] The Commission telephoned the Applicant again on 4 August 2020 regarding the unsuccessful payment of the lodgement fee. The call was unanswered.

[10] In the absence of any communication from the Applicant, a further telephone call was made on 5 August 2020. Again, the call was unanswered. The same day, an email was sent to the Applicant advising that payment of the lodgement fee was unsuccessful. The Applicant was requested to urgently contact the Commission to pay the lodgement fee or file a completed waiver application, or his application may be dismissed.

[11] On 12 August 2020, the Commission telephoned the Applicant, and a voicemail message was left advising that the application remained incomplete. An email was subsequently sent to the Applicant advising that his attempt to pay the lodgement fee was unsuccessful. The Applicant was advised that if he does not contact the Commission by close of business the same day, the application may be dismissed.

[12] To date, the Applicant has not paid the lodgement fee or filed a completed waiver application.

Legislative framework

[13] In relation to an application made pursuant to s 365 of the Act, s 367 provides:

367 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 365; 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.

(emphasis added)

[14] Section 587 of the Act provides that:

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.

(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 conclusion

[15] Despite the Commission’s attempts to progress the application, the Applicant has failed to pay the lodgement fee or file a completed waiver application. Accordingly, the application is incomplete.

[16] In these circumstances, I am satisfied that the Applicant has failed to comply with s 367(1). Accordingly, the application has not been made in accordance with the Act. It is therefore dismissed pursuant to s 587(1)(a) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR727133>