Richard Hand v Clean-Air

[2020] FWC 2799

[2020] FWC 2799

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Richard Hand
v
Clean-Air
(C2020/1427)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 4 JUNE 2020

Application to deal with contraventions involving dismissal.

[1] Mr Richard Hand (Applicant) has made an application under s.365 of the Fair Work Act 2009 (Act). He alleges that he was dismissed by Clean-Air (Respondent) in contravention of the general protection provisions of the Act.

[2] I have decided to dismiss the application. The reasons for this decision follow.

Context

[3] The application was received by the Commission on 6 March 2020 but was incomplete as the lodgement fee was not paid and no application for waiver of the lodgement fee (waiver application) was made.

[4] On 10 March 2020, the Commission:

(a) telephoned the Applicant on two separate occasions to advise that the application was incomplete. A voicemail message was left requesting the Applicant contact the Commission; and

(b) emailed a letter to the Applicant advising that he must pay the lodgement fee or file a waiver application within 14 days, or the application may be dismissed.

[5] In the absence of compliance by the Applicant, the Commission telephoned him on 27 March 2020. During the call, the Applicant indicated that by 30 March 2020 he would complete the waiver application.

[6] On 3 April 2020, the Commission telephoned the Applicant to discuss his application which remained incomplete. The call could not be completed, and therefore no voicemail message was left.

[7] In the absence of any communication from the Applicant, the Commission contacted the Applicant on three separate occasions, as follows:

(a) at 4:32pm on 6 April 2020, by email. The email advised that the application remained incomplete and may be dismissed unless the lodgement fee was paid, or a completed waiver application was received by 9 April 2020;

(b) at 11:24am on 15 April 2020, by telephone. A voicemail message was left; and

(c) at 11:55am on 20 April 2020, by telephone. A voicemail message was left.

[8] To date, the Applicant has not contacted the Commission, and has not paid the lodgement fee or filed a waiver application.

Legislative framework

[9] 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.”

(emphasis added)

[10] Section 587 of the Act provides that:

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 waiver application. Accordingly, the application is incomplete. The Applicant has not responded to several attempts by the Commission to contact him regarding the incomplete application.

[12] In these circumstances, I am satisfied that the Applicant has failed to comply with s.367(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.

DEPUTY PRESIDENT

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