Steven Webber v Lmjr Building Group Pty Ltd

[2022] FWC 317

[2022] FWC 317

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Steven Webber
v

Lmjr Building Group Pty Ltd

(C2021/8549)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 16 FEBRUARY 2022

Application to deal with contraventions involving dismissal.

1. Mr Steven Webber (applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that he was dismissed by Lmjr Building Group Pty Ltd 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 regulations or by a completed application for waiver of the lodgement fee (waiver application). The applicant has not responded to correspondence from the Commission alerting him 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 received by the Commission on 13 December 2021. On 15 December 2021, the Commission telephoned the applicant. A voice message was left requesting a return call as the application was made without payment of the required lodgement fee.

1. On 4 January 2022, the Commission again telephoned the applicant. A voice message was left noting that the lodgement fee remained unpaid and advising that unless the fee was paid or a completed waiver application was received, the application may be dismissed.

1. In the absence of a response from the applicant, on 12 January and 25 January 2022 the Commission telephoned the applicant. The calls could not be connected and a voice message could not be left.

1. On 25 January 2022, a letter was emailed to the applicant advising that he must pay the lodgement fee or file a waiver application within seven days or the application may be dismissed.

1. To date, the applicant has not paid the lodgement fee or filed a completed waiver application. The applicant has not made any submissions addressing why the application should not be dismissed.

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 $74.90. 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. 

(emphasis added)

Consideration and conclusion

1. The applicant has neither paid the lodgement fee or sought a fee waiver. Accordingly, the application is not made in accordance with s 367 of the Act.

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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