Nathan Ziegler v Floodgate Enterprises Pty Ltd

[2023] FWC 2982

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Nathan Ziegler
v

Floodgate Enterprises Pty Ltd

(C2023/6126)

VICE PRESIDENT CATANZARITI

SYDNEY, 14 NOVEMBER 2023

Application to deal with contraventions involving dismissal – application dismissed.

On 6 October 2023, Mr Nathan Ziegler (applicant) has made an application under s.365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that he was dismissed in contravention of the general protection provisions in Part 3-1 of the Act.

The application was not accompanied by the fee prescribed by the Fair Work Regulations 2009 (Cth) (regulations) or by a completed application for waiver of the lodgement fee (waiver application). The applicant has not responded to correspondence from the Commission alerting him to this deficiency, nor has the deficiency been rectified. I have decided to dismiss the application for the following reasons.

Context

On 11 October 2023, the Commission emailed correspondence to Mr Ziegler’s nominated email address advising that his application required payment of the filing fee or a completed waiver form if he wished to proceed with the application. The email further stated as follows:

“Please pay the application fee within 7 calendar days (or apply to have the fee waived) so we can progress your case.

If you don’t make payment within 7 days your application may be dismissed.”

On 20 October 2023, the Commission emailed correspondence to Mr Ziegler’s nominated email address reminding that his application required payment of the filing fee or a completed waiver form if he wished to proceed with the application. The correspondence instructed the applicant on how to pay the application fee or make a waiver application and further stated as follows:

“Reminder: You need to pay the application fee (or apply to have the fee waived) or your application may be dismissed.”.

A final attempt to contact Mr Ziegler on his nominated telephone number was made by the Commission on 25 October 2023 to obtain payment or a completed waiver form. The call was not answered, a voicemail message was left advising Mr Ziegler that payment of the required fee was still outstanding. Mr Ziegler’s Representative was also contacted via their nominated telephone number advising that the application remains unpaid, and that payment would be required otherwise the application may be dismissed, the call went to voicemail.

To date, the applicant has not paid the lodgement fee or filed a completed waiver application.

Legislative framework

In relation to an application made pursuant to s.365 of the Act, s.367(1) provides that the application “must be accompanied by any fee prescribed by the regulations.” At the time the application was made, the regulations prescribed a fee of $83.30. The regulations also allow for an application to be made for the fee to be waived.

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

(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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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.

Consideration and conclusion

The applicant has neither paid the lodgement fee nor sought a fee waiver. Accordingly, the application is not made in accordance with s.367 of the Act.

The applicant has taken no action to address the deficiency despite being notified of it by the Commission on multiple occasions. In these circumstances, I have decided to exercise my discretion to dismiss the application in accordance with s.587(1)(a) of the Act.

The application is dismissed.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of Nathan Ziegler v Floodgate Enterprises Pty Ltd, the applicant, Mr Nathan Ziegler, lodged an application under section 365 of the Fair Work Act 2009, alleging that he had been dismissed in contravention of the general protections outlined in Part 3-1 of the Act. The application was made against Floodgate Enterprises Pty Ltd. Despite the applicant’s claims, the application was not accompanied by the requisite fee prescribed by the Fair Work Regulations 2009, nor did it include a completed application for a waiver of this fee. Despite multiple communications from the Fair Work Commission alerting Mr Ziegler to this deficiency, no action was taken by the applicant to rectify the situation.

The central legal issue the Fair Work Commission had to address was whether the application could proceed given the non-compliance with the fee requirements. Under section 367(1) of the Act, any application made under section 365 must be accompanied by the prescribed fee or a completed fee waiver application. The Commission had communicated this requirement to Mr Ziegler on multiple occasions, yet no steps were taken by the applicant to comply with the directive. The question, therefore, was whether the failure to meet these procedural requirements justified the dismissal of the application under section 587(1)(a) of the Act.

The Fair Work Commission, after considering the statutory requirements and the applicant’s failure to address the fee issue despite being notified multiple times, decided to dismiss the application. The Vice President concluded that since the application was not made in accordance with the Act due to the lack of the required fee or waiver application, the application could be dismissed under section 587(1)(a). The Commission exercised its discretion to dismiss the application, thereby bringing the matter to an end without proceeding to the merits of the applicant's dismissal claims.

The final orders of the Commission were that the application made by Mr Nathan Ziegler be, and is hereby, dismissed. The dismissal was based on the applicant's failure to comply with the procedural requirement of paying the prescribed fee or submitting a completed fee waiver application, despite being notified of this requirement multiple times.

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established