Russell Skarratt v

[2017] FWC 6429

[2017] FWC 6429

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Russell Skarratt
v
(C2016/6330)

DEPUTY PRESIDENT KOVACIC CANBERRA, 12 DECEMBER 2017

Application to deal with contraventions involving dismissal - invalid application - application dismissed.

[1] On 24 October 2016 Mr Russell Skarratt (the Applicant) filed an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging a contravention of the general protections provisions involving a dismissal. Mr Skarratt’s application was incomplete in that no Respondent details were provided in the application and the application was made without payment of the lodgment fee, as Mr Skarratt’s credit card payment had been declined.

[2] On 25 October 2016, the Fair Work Commission (the Commission) sent an email to Mr Skarratt advising that his payment of the application fee had been declined and asked him to provide the Commission with a completed application and a completed waiver form or lodgment fee within 14 days or the application may be dismissed.

[3] On 25 October 2016, the Commission received a telephone call through the Commission’s general enquiries line from Mr Skarratt. During this call Mr Skarratt enquired about the email he had received, he was informed that his application was incomplete in that and there was no payment or a form for fee waiver completed. Mr Skarratt advised that he did not have access to the internet and requested he be contacted by telephone regarding his application and the payment of the lodgement fee.

[4] On 25 October 2016, the Commission attempted unsuccessfully to contact Mr Skarratt via telephone.

[5] On 26 October 2016, the Commission contacted Mr Skarratt via telephone and explained that his application was incomplete and no payment or application for waiver of the lodgment fee was completed. Mr Skarratt requested that a copy of his application be sent to him, it was then explained to him that a copy was provided in the email regarding the incomplete application. Mr Skarratt advised that he will again check the email and contact the Commission immediately if he cannot access the incomplete application form provided in the letter, he also advised that he will call the Commission to arrange payment of the lodgement fee on 28 October 2016.

[6] On 7 November 2016 Mr Skarratt contacted the Commission via telephone and advised that he had not received the email advising that his application was incomplete, he further advised that he checked his spam folder and then confirmed his email address on file with the Commission. Subsequently, the Commission resent Mr Skarratt the email advising that his application was incomplete and no payment of the lodgement fee or application for waiver of the lodgment fee completed. The email foreshadowed that if the application was not completed and no payment of lodgement fee made or application for waiver of the lodgement fee completed within 14 days it may be dismissed.

[7] On 1 December 2016 the Commission contacted Mr Skarratt via telephone to advise that the application remained unpaid and incomplete, Mr Skarratt advised that he would visit his library to submit the completed application.

[8] Despite these repeated attempts to contact Mr Skarratt, the Commission has received no completed application form, application for fee waiver or payment of the lodgement fee.

[9] Section 587 of the Act provides:

“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.”

[10] In relation to an application made pursuant to s.365 of the Act, s.367 provides:

“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.”

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

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