Royston Barker v Denim Enterprises Pty Ltd T/A G Star

[2014] FWC 8056

[2014] FWC 8056

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Royston Barker
v
Denim Enterprises Pty Ltd T/A G Star
(C2014/6265)

Royston Barker
v
Super Retail Group Limited
(C2014/6268)

DEPUTY PRESIDENT KOVACIC CANBERRA, 14 NOVEMBER 2014

Application to deal with contraventions involving dismissal - invalid application.

[1] On 8 September 2014 Mr Royston Barker made two applications under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with disputes concerning contraventions of the general protections provisions of the Act involving a dismissal.

[2] Mr Barker’s applications were accompanied by applications for waiver of the lodgement fee.

[3] Section 367 of the Act, which deals with the application fees applying in respect of applications made under s.365, 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.”

[4] On 9 September 2014 a letter was emailed to Mr Barker advising him that the Commission had not waived the payment of the filing fees as his applications indicated that he had sufficient funds to pay the fees and he had not provided any reason as to why payment of the fees would cause serious hardship. Mr Barker was advised that the matters would not proceed until payment of the appropriate filing fees had been made.

[5] On 16 September 2014 a telephone call was made to Mr Barker who advised that he had an appointment with a solicitor the following week and would then decide whether he would pursue his applications. An email was sent later that day confirming the issues discussed in the telephone conversation. Specifically, the email reiterated that Mr Barker’s fee waiver applications had been refused and that, as such, he could either discontinue his applications or pay the application fees. Mr Barker was asked to contact the Commission after the appointment with his solicitor.

[6] On 10 October 2014 a telephone message was left for Mr Barker to call the Commission. He returned the call later that afternoon saying he would send an email to the Commission. However, no correspondence was received by the Commission.

[7] Against that background, a telephone message was left for Mr Barker on 24 October 2014 and an email sent on 27 October 2014 advising him that he had until 31 October 2014 to pay the filing fees or his applications would be dismissed. No response has been received from Mr Barker, nor have the required application fees been paid.

[8] 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.”

[9] Having regard to the circumstances of this matter, I am satisfied that as the applications were not accompanied by the application fee prescribed by the Act, the applications were not made in accordance with the Act. As such, the applications are dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued separately.

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