Noah Bond v W-S Parcel Service Pty Ltd
[2024] FWC 1855
•19 JULY 2024
| [2024] FWC 1855 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Noah Bond
v
W-S Parcel Service Pty Ltd
(C2024/1970)
| DEPUTY PRESIDENT EASTON | SYDNEY, 19 JULY 2024 |
Application to deal with contraventions involving dismissal
On 25 March 2024, Noah Bond made an application under s.365 of the Fair Work Act 2009 (Cth). Mr Bond alleges that he was dismissed in contravention of the general protection provisions in Part 3-1 of the Act.
The application was prepared by Ms Belinda Solomon in her capacity as “Industrial Agent for and on behalf of Employee Dismissals.” The final page of the application indicated that the Application Fee would be paid by credit card and nominated Mr Bond as the payer. The form itself says in this regard: “If paying by credit card, please provide the payer’s details below and a Commission officer will contact the payer by telephone within 3 business days from the date of lodgment.”
Fair Work Commission staff sent a payment request to Mr Bond directly on 28 March 2024. Staff also sent an SMS on 29 March 2024 asking Mr Bond to action his payment request email to pay the application fee. Mr Bond did not respond to either message.
On 3 April 2024 Commission staff sent a reminder to pay to Mr Bond. No response was received.
A telephone call to Mr Bond’s nominated telephone number was made on 8 April 2024, however the message received was the phone is not connected. The telephone call was followed up with a letter to request payment of the application fee and was sent to Mr Bond and his representative, Employee Dismissals.
Another attempt was made via telephone on 19 April 2024 to contact Mr Bond but the mobile phone was still not connected.
A call was made by Commission staff to the Applicant’s representative, Employee Dismissals on 19 April 2024 regarding the outstanding payment, a voice message was left advising them that if payment is not received by 23 April 2024 the matter may be dismissed.
Nobody from Employee Dismissals afforded the Commission the courtesy of returning the call. It appears that Employee Dismissals has done nothing to assist Mr Bond since his application was lodged.
The matter was referred to my chambers on 19 June 2024 and there were further attempts to contact Mr Bond by telephone on 8 July 2024 and 15 July 2024. On both occasions the message said the phone is not connected.
One final email was sent to Mr Bond on 8 July 2024 and Employee Dismissals were cc’d into it.
An email was sent on 15 July 2024 to Employee Dismissals regarding the outstanding application fee.
To date, Mr Bond and Employee Dismissals have not responded to any correspondence from the Fair Work Commission, nor has the lodgement fee been paid or a waiver application for the fee been received.
Legislative framework
Section 367(1) of the Act requires that an application under s.365 “must be accompanied by any fee prescribed by the regulations.” At the time Mr Bond’s 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.
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.”
Consideration and conclusion
Mr Bond has neither paid the lodgement fee or sought a fee waiver. Accordingly, the application is not made in accordance with s.367 of the Act.
Mr Bond has taken no action to address the deficiency despite several invitations to do so and despite being notified of the potential consequences for his application if the deficiency is not rectified. 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.
DEPUTY PRESIDENT
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