Omid Andave v Hicrete Roofing & Cladding (SA) Pty Ltd

[2023] FWC 1388

[2023] FWC 1388

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Omid Andave
v

Hicrete Roofing & Cladding (SA) Pty Ltd

(C2023/2044)

DEPUTY PRESIDENT CLANCY MELBOURNE, 14 JUNE 2023

Application to deal with contraventions involving dismissal – application dismissed.

1. On 6 April 2023, Mr Omid Andave (Applicant) made an application under s.365 of the Fair Work Act 2009 (Cth) (Act). Mr Andave alleges that he was dismissed in contravention of the general protection provisions in Part 3-1 of the Act.

1. The application was not accompanied by the application fee prescribed by the Fair Work Regulations 2009 (Cth) (Regulations). Nor was a completed Form F80 – Application for waiver of the application fee (Form F80) attached.

1. On 16 April 2023, the Commission emailed correspondence to Mr Andave’s nominated email address advising him that his application required payment of the application fee or a completed Form F80, 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.”

1. An SMS notification was also sent to Mr Andave’s nominated telephone number, on 17 April 2023. The SMS advised Mr Andave to take action in compliance with the email from the Commission regarding payment of the application fee.

1. On 26 April 2023, the Commission emailed correspondence to Mr Andave’s nominated email address reminding him that his application required payment of the application fee or a completed Form F80 if he wished to proceed with the application. The correspondence instructed Mr Andave on how to pay the application fee or complete a Form F80, 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.”.

1. On 4 May 2023, an attempt to contact Mr Andave on his nominated telephone number were made by the Commission. The call was not answered, and a voicemail message was left requesting Mr Andave make contact with the Commission and advised that if payment of the application fee was not received by 5pm, on 5 May 2023, his matter would be at risk of being dismissed.

1. On 7 May 2023 a final attempt to contact Mr Andave on his nominated telephone number was made by the Commission. Mr Andave did answer the call and advised that he was confused about the application because he had been asked to lodge it by the Union, however, Mr Andave then confirmed that he would pay the application fee by 5pm on 8 May 2023. Mr Andave confirmed that he understood that if payment was not made by this time, his matter would be dismissed.

1. To date, Mr Andave has not paid the application fee or filed a completed Form F80.

Legislative framework

1. 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 $77.80. The regulations also allow for an application to be made for the fee to be waived.

1. 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 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

1. In considering all the circumstances, I am satisfied that the relevant application form was not accompanied by the prescribed fee and the application has not been made in accordance with the Act. Given the absence of the fee payment, it is likely that there is no valid application before the Commission[1] and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act.

1. The many attempts by the Commission to contact Mr Andave, the reminders and the multiple requests that have not been complied with leave me satisfied that it is appropriate in all of the circumstances to dismiss the purported application.

1. The application is dismissed. An Order[2] to this effect will be issued with this decision.
   

DEPUTY PRESIDENT

[1] Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].

[2] PR763043.

Printed by authority of the Commonwealth Government Printer

<PR763042>