Philip Turner v Woody's Timber Pty Ltd as the Trustee for Woody's Unit Trust T/A Woody's Timber
[2018] FWC 6673
•29 OCTOBER 2018
| [2018] FWC 6673 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Philip Turner
v
Woody’s Timber Pty Ltd as The Trustee for Woody’s Unit Trust T/A Woody’s Timber; Aaron Sander; Jason Warren
(C2018/4081)
| Deputy President Kovacic | CANBERRA, 29 OCTOBER 2018 |
Application to deal with contraventions involving dismissal - invalid application - application dismissed.
Mr Philip Tuner (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 24 July 2018 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Woody’s Timber Pty Ltd as The Trustee for Woody’s Unit Trust T/A Woody’s Timber; Aaron Sander; and Jason Warren (the Respondents) in contravention of the general protections provisions in the Act. Mr Turner’s application was incomplete in that no payment or application for waiver of the lodgment fee was completed.
On 25 July 2018 the Commission contacted Mr Turner via telephone regarding his application. Mr Turner advised that his legal representative would make the payment. Subsequently an email was sent to Mr Turner and his legal representative, asking that the Commission be provided with payment or an application for waiver of the lodgment fee within 14 days or the application may be dismissed.
On 10 August 2018, the Commission contacted Mr Turner’s legal representative who advised that Mr Turner would make the payment. The Commission then contacted Mr Turner who advised that he would complete the application for fee waiver. The Commission then emailed a waiver application form to Mr Turner.
On 15 August 2018, the Commission contacted Mr Turner by telephone. During the call Mr Turner advised that he had sent the application for fee waiver via post.
In other developments, on 27 September 2017, the Applicant’s representative ceased to act for Mr Turner. However, the application for fee waiver was not received by the Commission.
The Commission again attempted to contact Mr Turner on 4 October 2018 by telephone and email regarding his application. The correspondence foreshadowed that Mr Turner’s application may be dismissed unless he completed either the waiver form or paid the lodgement fee.
Despite the above attempts the Commission has received no completed waiver form or lodgment fee payment from Mr Turner.
Section 587 of the Act 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.”
In relation to an application made pursuant to s.365 of the Act, s.367 provides:
“367 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 365; 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.”
Mr Turner has failed to comply with s.367(1) of the Act. Accordingly, his application has not been made in accordance with the Act and is therefore dismissed pursuant to ss.587(1)(a) of the Act. An order to that effect will be issued with this decision.
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