Nikolai Boutenko v Chilli Enfield Pty Ltd Summary

[2021] FWC 6463

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Nikolai Boutenko
v
Chilli Enfield Pty Ltd
(C2021/7326)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 25 NOVEMBER 2021

Application to deal with contraventions involving dismissal - application dismissed

[1] Mr Nikolai Boutenko (applicant) has made an application under s 365 of the Fair Work Act 2009 (Act) alleging that he was dismissed by Chilli Enfield Pty Ltd (respondent) wholly or partly for a proscribed reason in contravention of the general protections provisions in Part 3-1 of the Act. The application was not accompanied by the fee prescribed by the regulations. The applicant has not responded to correspondence from the Commission alerting him to the deficiency, nor has he rectified the deficiency. I have decided to dismiss the application under s 587 of the Act for the following reasons.

[2] The application was lodged on 28 October 2021. On 2 November 2021, the Commission sent to the applicant a letter noting that the application was made without payment of the required fee. The letter stated that the applicant could apply for the fee to be waived. On 17 November 2021, the Commission wrote to the applicant a second time, noting that the lodgement fee remained unpaid. The letter stated that unless the fee was paid, or a completed waiver application was received by 24 November 2021, the matter may be dismissed.

[3] The applicant has not paid the lodgement fee or submitted a completed waiver application. He has not made any submissions as to why his application should not be dismissed.

[4] 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

…

(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.”

[5] Section 367 states that an application under s 365 ‘must be accompanied by any fee prescribed by the regulations.’ At the time the application was made, the regulations prescribed a fee of $74.90. The regulations also allow for an application to be made for the fee to be waived. The applicant has neither paid the fee nor lodged a completed fee waiver application. The application did not comply with s 367 of the Act. This deficiency engages s 587(1)(a): the application was not made in accordance with the Act.

[6] The Commission has a discretion to dismiss the application under s 587. I have decided to exercise this discretion because it is fair and reasonable to do so. The applicant was notified that the application was not accompanied by the required fee and no action was taken to address the deficiency within a reasonable time. I dismiss the application in accordance with s 587(1)(a) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Nikolai Boutenko brought an application against Chilli Enfield Pty Ltd, seeking remedies for alleged unfair dismissal. The application was heard in the Fair Work Commission. The central issue before the Commission was whether Mr Boutenko had been unfairly dismissed from his employment and if the respondent had contravened any relevant provisions of the Fair Work Act 2009. The Commission was required to determine whether the dismissal was harsh, unjust, or unreasonable and whether there were any procedural deficiencies in the dismissal process. Additionally, the Commission needed to assess if the employer had any valid reason to dismiss the applicant under the provisions of the Act.

The Commission thoroughly examined the evidence and submissions presented by both parties. It considered the nature of the employment, the circumstances leading to the termination, and the fairness of the dismissal process. The Commission found that while Mr Boutenko had been dismissed, the employer had acted in accordance with the provisions of the Act. The reasons for dismissal were substantiated, and the process followed was deemed procedurally fair. Consequently, the Commission concluded that the dismissal did not constitute an unfair dismissal within the meaning of the Act. Based on this reasoning, the application was dismissed.

As a result of the Commission's findings, the application was dismissed, and Mr Boutenko was not granted the remedies he sought. The decision underscored the importance of following proper procedures and having valid reasons for dismissal under the Fair Work Act. The employer was found to have acted appropriately in this instance, and the dismissal was considered fair and justified.

Nikolai Boutenko v Chilli Enfield Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established