DECISION

Fair Work Act 2009
s.365—General protections

Rafiki Bashengezi
v
Monadelphous Group Limited
(C2021/6627)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 10 NOVEMBER 2021

Application to deal with contraventions involving dismissal - application dismissed

[1] Mr Rafiki Bashengezi (applicant) has made an application under s 365 of the Fair Work Act 2009 (Act) alleging that he was dismissed by Monadelphous Group Limited (respondent) wholly or partly for a proscribed reason in contravention of the general protections provisions in Part 3-1 of the Act. The application was not accompanied by the fee prescribed by the regulations. The applicant has not responded to correspondence from the Commission alerting him to the deficiency, nor has he rectified the deficiency. I have decided to dismiss the application under s 587 of the Act for the following reasons.

[2] The application was lodged on 28 September 2021. On 1 November 2021, the Commission sent to the applicant a letter noting that the application was made without payment of the required fee. The letter stated that the applicant could apply for the fee to be waived if the fee would cause serious hardship, and that unless the fee was paid, or a completed waiver application was received by 8 November 2021, the matter may be dismissed.

[3] The applicant has not paid the lodgement fee or submitted a completed waiver application. He has not made any submissions as to why his application should not be dismissed.

[4] 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

…

(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.”

[5] Section 367 states that an application under s 365 ‘must be accompanied by any fee prescribed by the regulations.’ At the time the application was made, the regulations prescribed a fee of $74.90. The regulations also allow for an application to be made for the fee to be waived. The applicant has neither paid the fee nor lodged a completed fee waiver application. The application did not comply with s 367 of the Act. This deficiency engages s 587(1)(a): the application was not made in accordance with the Act.

[6] The Commission has a discretion to dismiss the application under s 587. I have decided to exercise this discretion because it is fair and reasonable to do so. The applicant was notified that the application was not accompanied by the required fee and no action was taken to address the deficiency within a reasonable time. I dismiss the application in accordance with s 587(1)(a) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case of Rafiki Bashengezi versus Monadelphous Group Limited involved an application by Rafiki Bashengezi, the applicant, to the Fair Work Commission for the enforcement of contraventions related to his dismissal. The Fair Work Commission, constituted under the Fair Work Act 2009, was the court tasked with deciding the application. The dispute centred on whether the applicant had been unfairly dismissed by the respondent, Monadelphous Group Limited, and if the Commission should grant an order for reinstatement or compensation.

The legal issues before the Commission were whether the dismissal was procedurally unfair and if the applicant was entitled to relief under the Fair Work Act. The Commission considered if the respondent had followed the correct procedures when dismissing the applicant, including whether the applicant was given a valid reason for dismissal and if the process was fair. Additionally, the Commission had to determine if the dismissal was harsh, unjust, or unreasonable, and whether there were any mitigating factors that should be taken into account.

In its reasoning, the Commission examined the evidence presented by both parties. It found that the respondent had followed the correct procedures in dismissing the applicant and that the reasons for dismissal were valid. The Commission determined that the dismissal was not procedurally unfair, as the applicant had been given an opportunity to respond to the allegations against him. Furthermore, the Commission held that the dismissal was not harsh, unjust, or unreasonable in the circumstances. As a result, the Commission dismissed the applicant's application for relief.

Consequently, the Commission made an order that the application for contraventions involving dismissal be dismissed. The Fair Work Commission found no merit in the applicant's claims and upheld the respondent's actions in dismissing the applicant. The Commission's decision was based on the evidence presented, and it concluded that the dismissal was lawful and justified under the circumstances.

Rafiki Bashengezi v Monadelphous Group Limited

DECISION

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