Rick Green v AIA Australia Limited

[2019] FWC 6057

[2019] FWC 6057

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Rick Green
v
AIA Australia Limited
(C2019/3990)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 11 OCTOBER 2019

Application to deal with contraventions involving dismissal.

[1] Mr Rick Green (Applicant) made an application under s.365 of the Fair Work Act 2009 (Act) alleging that he had been dismissed by AIA Australia Limited (Respondent) in contravention of the general protections provisions of the Act. The application was received by the Fair Work Commission (Commission) on 27 June 2019 but was incomplete, as the lodgement fee was not paid and no application for waiver of the lodgement fee (waiver application) was made.

[2] On 28 June 2019, the Commission telephoned the Applicant to advise that the lodgement fee was unpaid. During the telephone call, the Applicant advised that he believed that the payment made to his representative, Unfair Dismissals Direct, was to cover the lodgement fee. The Applicant advised that he would contact Unfair Dismissals Direct that afternoon to discuss the payment. On the same day, an email was sent to the Applicant and to Ms Vanessa Nikolovska of Unfair Dismissals Direct, advising that in the absence of payment of the lodgement fee or receipt of a completed waiver application, the application may be dismissed.

[3] On 19 July 2019, the Commission telephoned the Applicant regarding the lodgement fee. The Applicant advised that he had contacted Unfair Dismissals Direct and it would pay the lodgement fee on his behalf. The Applicant advised he would contact Ms Nikolovska to follow this up.

[4] On 22 July 2019, Ms Nikolovska from Unfair Dismissals Direct telephoned the Commission regarding the application. The Commission was advised that the Applicant should be paying the lodgement fee. A telephone call was then made to the Applicant by the Commission. A voicemail message was left advising the Applicant that if payment of the lodgement fee was not received within seven days, the application may be dismissed. The same day, an email was set to the Applicant and to Ms Nikolovska confirming that the application may be dismissed unless the lodgement fee was paid or a completed waiver application was completed.

[5] To date, the Commission has not received payment of the lodgement fee or a completed waiver application from the Applicant or Unfair Dismissals Direct.

[6] 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.”

[7] 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.”

[8] The Applicant has failed to comply with s.367(1). Accordingly, the application has not been made in accordance with the Act and is therefore dismissed pursuant to s.587(1)(a). An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR711864>