Nqobile Khumalo

[2024] FWC 2604

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.372—General protections

Nqobile Khumalo

(C2024/4948)

DEPUTY PRESIDENT EASTON

SYDNEY, 20 SEPTEMBER 2024

Application to deal with other contraventions dispute – incomplete application – application is not made in accordance with this Act – application dismissed – s.587(1)(a).

On 18 July 2024 Mr Nqobile Khumalo made a general protections application not involving dismissal to the Fair Work Commission under s.372 of the Fair Work Act 2009 (Cth).

Mr Khumalo’s application was incomplete. The legal name of the Respondent was not specified and Mr Khumalo did not properly state the attribute he relied upon under s.351.

Commission staff have made extraordinary attempts to contact Mr Khumalo to raise concerns about the application but Mr Khumalo has provided no response at all.

Mr Khumalo’s application was not made in accordance with the Act (per s.587(1)(a)). Section 587 confers a discretion on the Commission to dismiss the application.

I am satisfied that Mr Khumalo has had the opportunity to put his case for consideration on all matters material to the making of the decision to dismiss his application under s.587 (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [15]-[16] and the cases cited therein). Mr Khumalo has been given ample opportunity to rectify the deficiency in the application however the Commission’s inquiries and warnings have been ignored.

I order that Mr Khumalo’s application be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Nqobile Khumalo, the applicant sought to bring a general protections application before the Fair Work Commission, under section 372 of the Fair Work Act 2009, without alleging dismissal. The application was incomplete, lacking specification of the respondent's legal name and a proper statement of the attribute relied upon under section 351. Despite attempts by the Commission's staff to contact Mr Khumalo and address the deficiencies in his application, there was no response, resulting in the application being dismissed.

The central legal issues in this matter involved whether the application complied with the statutory requirements under the Fair Work Act and whether the Commission had the discretion to dismiss an incomplete application. The court needed to determine if the application met the necessary criteria for consideration and if Mr Khumalo had been given a fair opportunity to rectify the deficiencies in his application.

The Deputy President of the Fair Work Commission, Easton, held that Mr Khumalo's application did not conform to the Act, specifically under section 587(1)(a), which allows for the dismissal of an application if it is not made in accordance with the Act. The court found that Mr Khumalo had ample opportunity to address the deficiencies but had ignored the Commission's inquiries and warnings. Consequently, the application was dismissed, as the court was satisfied that Mr Khumalo had been given a fair chance to present his case.

No further orders were made beyond the dismissal of the application. The decision underscores the importance of adhering to statutory requirements and the Commission's discretion to dismiss incomplete applications.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established