Sturt Wydmuch v Australian Pre Cast Installers and Rigging Pty Ltd

[2019] FWC 5070

[2019] FWC 5070

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Sturt Wydmuch
v
Australian Pre Cast Installers and Rigging Pty Ltd
(C2019/2374)

DEPUTY PRESIDENT KOVACIC CANBERRA, 6 AUGUST 2019

Application to deal with contraventions involving dismissal.

[1] Mr Sturt Wydmuch (the Applicant) made an application, by telephone, with the Fair Work Commission (the Commission) on 10 April 2019 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Australian Pre Cast Installers and Rigging Pty Ltd (the Respondent) in contravention of the general protections provisions in the Act. Mr Wydmuch’s application was incomplete in that a signed and completed application was not returned to the Commission.

[2] Rule 9 of the Fair Work Commission Rules 2013 provides that:

“9 Telephone applications

…

(3) The Commission must prepare a written application for the person, based on the telephone application, and give the written application to the person.

(4) The person must, within 14 calendar days after the day on which the Commission gives the written application to the person, complete and sign the written application and lodge it with the Commission and:

(a) pay:

(i) for an application under section 365 of the Act—the fee mentioned in regulation 3.02 of the Regulations; or

(ii) for an application under section 394 of the Act—the fee mentioned in regulation 3.07 of the Regulations; or

(b) apply for a waiver of the fee.”

[3] A written copy of the Applicant’s telephone application was emailed to the him on 11 April 2019. On 10 May 2019 an email was sent to the Applicant requesting him to complete and return the application and foreshadowed that if he failed to submit these then his application may be dismissed.

[4] On 29 May 2019 the Commission unsuccessfully sought to contact the Applicant by telephone with a voicemail left. This was followed by an email sent to the Applicant regarding his application. On both occasions it was again foreshadowed that the Applicant’s application may be dismissed unless he completed either the waiver form or paid the lodgement fee.

[5] No correspondence has been received from the Applicant since the application was lodged on 10 April 2019.

[6] 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.”

[7] 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.”

[8] Mr Wydmuch 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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