Paul Baltas v The Trustee for Zhang-Hoyle Family T/A Eastern Cleaning Supplies

[2023] FWC 3137

[2023] FWC 3137

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Paul Baltas
v

The Trustee For Zhang-Hoyle Family T/A Eastern Cleaning Supplies

(C2023/6544)

DEPUTY PRESIDENT CLANCY MELBOURNE, 28 NOVEMBER 2023

Application to deal with contraventions involving dismissal - application dismissed.

1. On 26 October 2023, Mr Paul Baltas (Applicant) attempted to make an application under s.365 of the Fair Work Act 2009 (Cth) (Act) via telephone. Over the telephone, Mr Baltas provided the contact information for himself and for The Trustee For Zhang-Hoyle Family T/A Eastern Cleaning Supplies (the Respondent). Mr Baltas did not provide any information on the remedy he was seeking, or contraventions he was alleging under the Act. Later that day, the Commission sent email correspondence to Mr Baltas’ nominated email address, requesting that he provide a completed Form F8 – General protections application involving dismissal (Form F8). The email correspondence received an undeliverable bounce back email, indicating that the correspondence was not received by him.

1. On 30 October 2023, the Commission contacted Mr Baltas on his nominated telephone number, to confirm his correct email address. Email correspondence was then sent to Mr Baltas requesting he provide a completed Form F8. The correspondence attached a Form F8 which was already populated with information Mr Baltas had previously provided over the telephone. It was requested that Mr Baltas complete the remainder of the Form F8, pay the application fee or complete a Form F80 – Waiver of Application fee (Form F80), and sign and return the forms within 14 days, otherwise his matter may be dismissed without further notice.

1. On 15 November 2023, the Commission again contacted Mr Baltas on his nominated telephone number. Mr Baltas confirmed that he would submit a complete application by close of business on the 16 November 2023. Mr Baltas was advised that if his complete Form F8 was not received by this date, his matter may be dismissed without further notice. To date Mr Baltas has not provided a completed Form F8, made payment of the application or sought a Waiver. Nor has Mr Baltas made any further contact with the Commission since 15 November 2023.

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 $83.30. 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 as the application form in question was incomplete and not accompanied by the prescribed fee or a Form F80, it has not been made in accordance with the Act. Given the absence of a completed Form F8 and fee payment, it is likely that there is no valid application before the Commission and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act.

1. Despite the attempts by the Commission to contact him, the reminders and multiple requests, Mr Baltas has not responded.  In these circumstances, I am satisfied that it is appropriate in all the circumstances to dismiss the purported application. The application is dismissed. An Order[1] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] PR768823.

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