Sam Darley v The Trustee for Cuisine Fresh Family Trust

[2023] FWC 168

[2023] FWC 168

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Sam Darley
v

The Trustee For Cuisine Fresh Family Trust

(C2022/6213)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 20 JANUARY 2023

Application to deal with contraventions involving dismissal – application dismissed.

1. Sam Darley (applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that they were dismissed in contravention of the general protection provisions in Part 3-1 of the Act.

1. The application was not accompanied by the fee prescribed by the Fair Work Regulations 2009 (Cth) (regulations) or by a completed application for waiver of the filing fee (waiver application). The applicant has not responded to correspondence from the Commission alerting them to this deficiency, nor has the deficiency been rectified. I have decided to dismiss the application for the following reasons.

Context

1. The application was filed on 8 September 2022, being filed by the applicant’s representative.

1. On 9 September 2022, the Commission emailed correspondence to the applicant’s nominated email address advising that the application required payment of the filing fee or a completed waiver application. The email put the applicant on notice that the application was at risk of being dismissed and provided instructions to effect payment. A text message to the same effect was also sent to the applicant’s nominated telephone number.

1. On 12 September 2022, the Commission emailed the applicant. The correspondence instructed the applicant on how to pay the filing fee or make a waiver application and put the applicant on notice that the application may be dismissed in the absence of compliance.

1. On 26 September and 28 September 2022, the Commission attempted to call the applicant on the applicant’s nominated telephone number. A voicemail message was left on each occasion requesting an urgent response.

1. On 4 October 2022, the Commission telephoned the applicant. The applicant requested a return call on the basis of being busy.

1. On 19 January 2023, the Commission attempted to call the applicant, unsuccessfully.

1. To date, the applicant has not paid the filing fee or filed a completed waiver application.

Legislative framework

1. In relation to an application made pursuant to s 365 of the Act, s 367(1) provides that the application “must be accompanied by any fee prescribed by the regulations.” At the time the application was made, the regulations prescribed a fee of $77.80. The regulations also allow for an application to be made for the fee to be waived.

1. 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

(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.

Consideration and conclusion

1. The applicant has neither paid the filing fee nor sought a fee waiver. Accordingly, the application is not made in accordance with s 367 of the Act.

1. The applicant has taken no action to address the deficiency despite being notified of it by the Commission on multiple occasions. In these circumstances, I have decided to exercise my discretion to dismiss the application in accordance with s 587(1)(a) of the Act.

1. The application is dismissed.

DEPUTY PRESIDENT

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