Nicholas Turner v The Trustee for the Croft Family Trust

[2019] FWC 3700

[2019] FWC 3700

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Nicholas Turner
v
The Trustee for the Croft Family Trust
(C2019/1815)

DEPUTY PRESIDENT KOVACIC CANBERRA, 6 AUGUST 2019

Application to deal with contraventions involving dismissal.

[1] Mr Nicholas Turner (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 20 March 2019 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by The Trustee for the Croft Family Trust (the Respondent) in contravention of the general protections provisions in the Act. Mr Turner’s application was incomplete in that no payment or application for waiver of the lodgement fee was completed.

[2] On 21 March 2019 the Commission unsuccessfully sought to contact the Applicant by telephone, with a voicemail left requesting the Applicant contact the Commission in relation to payment of the application fee. An email was also sent that day to the Applicant requesting that he provide the Commission with payment or an application for waiver of the lodgement fee within 14 days or his application may be dismissed.

[3] In the absence of any response from the Applicant, on 27 March 2019 the Commission again sought to contact the Application by telephone. Again a detailed voicemail was left for the Applicant seeking payment of the application fee.

[4] The Commission subsequently contacted the Applicant again via telephone, post and email on 8 May 2019 and provided a F80 – waiver of application fee, requiring a response within 7 days. It was again foreshadowed that Mr Turner’s application may be dismissed unless he completed the waiver form or paid the lodgement fee. On 13 May 2019, a further phone call was made to the Applicant but there was no answer.

[5] On 15 May 2019, the Commission spoke by telephone to the Applicant’s partner and was advised that the Applicant does not have his own phone. The Applicant’s partner confirmed that a letter was received from the Commission and the waiver form was being completed. The Commission advised the Applicant’s partner that the matter will be referred to a Member of the Commission if either payment or the waiver form was not received by 16 May 2019. A further voicemail message was left on 17 May 2019 regarding the application and foreshadowing that the application would be dismissed if no response was received.

[6] No correspondence has been received from the Applicant since the application was lodged on 20 March 2019 in response to the Commission’s correspondence, voicemail messages or following the telephone call with the Applicant’s partner on 15 May 2019.

[7] Section 587 of the Act provides:

“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.”

[8] 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.”

[9] Mr Turner has failed to comply with s.367(1) of the Act. Accordingly, his application has not been made in accordance with the Act and is therefore dismissed pursuant to s.587(1)(a) of the Act. An order to that effect will be issued with this decision.

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