Scott Millar v JLW Services Pty Ltd

[2019] FWC 1439

[2019] FWC 1439

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Scott Millar
v
JLW Services Pty Ltd
(C2019/503)

DEPUTY PRESIDENT KOVACIC CANBERRA, 14 MARCH 2019

Application to deal with contraventions involving dismissal – application dismissed.

[1] Mr Scott Millar (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 18 January 2019 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by JLW Services Pty Ltd (the Respondent) in contravention of the general protections provisions in the Act. Mr Millar’s application was incomplete in that no payment or application for waiver of the lodgment fee was completed.

[2] On 21 January 2019 the Commission left a voicemail for the Applicant seeking payment. This was followed up with a letter which was emailed to the Applicant notifying him that the lodgement fee had not been paid and that the Applicant could apply for the fee to be waived.

[3] On 21 January the Commission received an email from the Applicant which stated:

“I told the person I was talking to before I won’t be able to pay for anything till I get a job I haven’t been paid any money since before Christmas I haven’t any money at all hopefully next week I will have some.”

[4] The Commission contacted the Applicant on 1 February 2019 advising him if he could not afford to pay the fee he could submit an application for a waiver. As the Applicant did not recall getting the waiver form via email, a copy was resent to him and he was also encouraged to complete it as soon as possible if he wanted to continue with his application.

[5] A further email was received from the Applicant on 1 February 2019 stating that he had received the waiver application form but he did not have a computer and would try to complete the form the next day at the library. Further to this email the Commission received another email on 4 February 2019 advising that the Applicant would pay on Thursday.

[6] Further attempts to contact the Applicant were made on 14 and 22 February 2019 but were unsuccessful with the Commission was unable to leave a voicemail message.

[7] 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.”

[8] 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.”

Mr Millar 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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