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:

[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.

Printed by authority of the Commonwealth Government Printer

The case of Scott Pendergast v In Earth Designs was heard in the Fair Work Commission, involving a dispute regarding the dismissal of Mr. Pendergast from his employment. The central issue was whether the dismissal was lawful under the Fair Work Act 2009 and if the employer had followed appropriate procedures. Mr. Pendergast contended that his dismissal was unjust and in breach of the act, while the employer, In Earth Designs, argued that the dismissal was justified and procedurally correct.

The primary legal issue before the court was whether Mr. Pendergast's dismissal was in accordance with the provisions of the Fair Work Act, particularly focusing on the procedural fairness and the substantive grounds for termination. The court had to assess whether the employer provided sufficient evidence to justify the dismissal and whether the process followed was compliant with the relevant statutory requirements. Additionally, the court needed to determine if the employer had acted in accordance with any applicable enterprise agreements or awards.

The Fair Work Commission found that the application by Mr. Pendergast to address the alleged contravention was invalid due to procedural shortcomings. The Commission noted that the application did not meet the necessary criteria for a valid application under the Fair Work Act. As a result, the application was dismissed, and Mr. Pendergast's claims regarding his dismissal could not be further pursued through this avenue. The decision underscored the importance of adhering to procedural requirements when making applications to the Commission. The Commission's dismissal of the application highlighted the necessity for claimants to ensure that their submissions are both valid and appropriately substantiated to warrant a hearing.

Scott Pendergast v In Earth Designs

DECISION

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