Patrick Witte v Dux Builders

[2019] FWC 7213

[2019] FWC 7213

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.773—Termination of employment

Patrick Witte
v
Dux Builders
(C2019/4517)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 8 NOVEMBER 2019

Application to deal with an unlawful termination dispute.

[1] Mr Patrick Witte (Applicant) has made an unlawful termination application under s.773 of the Fair Work Act 2009 (Act).

[2] I have determined to dismiss the application. The Applicant has failed to pay the lodgement fee or file a properly completed application for waiver of the lodgement fee (waiver application). The reasons for this decision follow.

Context

[3] The application was received by the Commission on 22 July 2019.

[4] Two preliminary issues were identified with the application:

(a) The application was incomplete as the lodgement fee was not paid and the waiver application filed by the Applicant had not been completed correctly and was therefore deficient.

(b) The information contained in the application revealed that the Applicant may be entitled to make a general protections application in relation to the matter. In such a case, s.723 of the Act provides that a person must not make an unlawful termination application if he or she is entitled to make a general protections court application in relation to the conduct.

[5] On 23 July 2019, the Commission telephoned the Applicant. He did not answer the call and a voicemail message was left requesting that he contact the Commission.

[6] A letter of the same date was emailed to the Applicant. The letter advised the Applicant that it appeared that he was entitled to make an application under the general protection provisions of Part 3-1 of the Act.

[7] In the absence of any response from the Applicant, the Commission contacted him on five separate occasions, as follows:

(a) at 1:24pm on 25 July 2019, by telephone. A voicemail message was left requesting that the Applicant contact the Commission to discuss the 23 July 2019 correspondence;

(b) at 09:16am on 6 August 2019, by telephone. A voicemail message was left requesting the Applicant contact the Commission;

(c) at 11:48am and 1:44pm on 7 August 2019, a combined three telephone calls were made to the Applicant. On the first two attempts, a voicemail message was left requesting that he contact the Commission. On the third attempt, a voicemail message was left asking the Applicant to contact the Commission urgently because if he wished to proceed with a general protections application, it would be out of time if it was not lodged the same day;

(d) at 4:13pm on 19 August 2019, by telephone. A voicemail message was left; and

(e) at 2:24pm on 24 October 2019. The call was unanswered.

[8] To date, the Commission has not received payment of the lodgement fee or a correctly completed waiver application. The Applicant has not responded to any communication from the Commission to discuss the application.

Legislative framework

[9] In relation to an application made pursuant to s.773 of the Act, s.775 provides:

775 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 773; 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.”

(emphasis added)

[10] Section 587 of the Act further 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.”

(emphasis added)

Consideration and conclusion

[11] The Applicant has failed to pay the lodgement fee or file a correctly completed waiver application. Accordingly, the application is incomplete. The Applicant has not responded to numerous attempts by the Commission to contact him regarding the application.

[12] In these circumstances, I am satisfied that the Applicant has failed to comply with s.775(1). Accordingly, the application has not been made in accordance with the Act. It is therefore dismissed pursuant to s.587(1)(a) of the Act.

[13] An order giving effect to this decision will be issued separately.

DEPUTY PRESIDENT

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