Scott Pendergast v In Earth Designs

[2016] FWC 2962

[2016] FWC 2962

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Scott Pendergast
v
In Earth Designs
(C2016/3269)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 12 MAY 2016

Application to deal with contravention involving dismissal – invalid application – application dismissed.

[1] Mr Scott Pendergast (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 7 April 2016 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by In Earth Designs (the Respondent) in contravention of the general protections provisions in the Act. Mr Pendergast’s application was incomplete in that parts of the application were missing, it was not accompanied by payment of the required application fee, or by a request to have the application fee waived.

[2] On 7 April 2016 the Commission attempted to contact Mr Pendergast via telephone regarding his incomplete application. Mr Pendergast advised that he would email his completed application to the Commission and also requested a waiver form be sent to him. An email was sent later that day confirming the issues discussed in the telephone conversation. Specifically, the email reiterated that a completed application along with the waiver form or application fee was required within 14 days or the application may be dismissed.

[3] On 21 April 2016 the Commission subsequently attempted to contact Mr Pendergast by telephone. Mr Pendergast did not answer the call and a voice message was unable to be left. Mr Pendergast returned the call later that afternoon saying he would submit the completed application to the Commission the following day. However, nothing was received by the Commission.

[4] The Commission subsequently attempted to contact Mr Pendergast on a number of occasions, i.e. 29 April 2016 and 6 May 2016, by telephone, email and letter regarding his application and incomplete payment. On each occasion it was foreshadowed that Mr Pendergast’s application may be dismissed unless he completed the application and the waiver form or paid the lodgement fee. Despite these repeated attempts to contact Mr Pendergast the Commission has received no completed waiver form or payment of the application fee.

[5] 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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(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:

(c) on its own initiative; or
(d) on application.”

[6] 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.”

[7] Mr Pendergast 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 ss.587(1)(a) of the Act. An order to that effect will be issued with this decision.

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