Prabin Khadka v Achieve in Parramatta Limited

[2023] FWC 3478

[2023] FWC 3478

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Prabin Khadka
v

Achieve In Parramatta Limited

(C2023/7470)

VICE PRESIDENT CATANZARITI SYDNEY, 22 DECEMBER 2023

Application to deal with contraventions involving dismissal – application dismissed.

1. On 28 November 2023, Mr Prabin Khadka (applicant) made an application under s.365 of the Fair Work Act 2009 (Cth) (Act). The applicant 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 fee prescribed by the Fair Work Regulations 2009 (Cth) (regulations) or by a completed application for waiver of the lodgement fee (waiver application). The applicant has not responded to correspondence from the Commission alerting him to this deficiency, nor has the deficiency been rectified. I have decided to dismiss the application for the following reasons.

Context

1. On 3 December 2023, the Commission emailed correspondence to Mr Khadka’s nominated email address advising that his application required payment of the filing fee or a completed waiver form 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. On 6 December 2023, the Commission emailed correspondence to Mr Khadka’s nominated email address reminding that his application required payment of the filing fee or a completed waiver form if he wished to proceed with the application. The correspondence instructed the applicant on how to pay the application fee or make a waiver application 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. A final attempt to contact Mr Khadka on his nominated telephone number was made by the Commission on 11 December 2023 to obtain payment or a completed waiver form. Mr Khadka expressed his wishes to submit a waiver application and he was directed to where he could download the form and to email it to the Commission as a matter of priority. Mr Khadka was also told that if he wishes to discontinue or has any difficulty with the waiver to ring the Commission.

1. A final follow up attempt was made to Mr Khadka’s representative Employee Dismissals on 13 December 2023 to inform them that Mr Khadka’s application was now at risk of dismissal unless payment or a waiver application is received as soon as possible. A voicemail was left explaining this along with the Commission’s contact details.

1. To date, neither the applicant nor his representative have paid the lodgement fee or filed a completed waiver application.

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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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. The applicant has neither paid the lodgement fee nor sought a fee waiver. Accordingly, the application is not made in accordance with s.367 of the Act.

1. The applicant has taken no action to address the deficiency despite being notified of it by the Commission on multiple occasions. In these circumstances, I have decided to exercise my discretion to dismiss the application in accordance with s.587(1)(a) of the Act.

1. The application is dismissed.

VICE PRESIDENT

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