Sullivan v Capital Smart Repairs

[2016] FWC 2244

[2016] FWC 2244

DECISION

Fair Work Act 2009
s.365—General protections
Aaron Sullivan
v
Capital Smart Repairs
(C2016/2397)
DEPUTY PRESIDENT KOVACIC	CANBERRA, 8 APRIL 2016

Application to deal with contraventions involving dismissal - invalid application - application

dismissed.

[1]        Mr Aaron Sullivan (the Applicant) made an application which was received by the

Fair Work Commission (the Commission) on 28 January 2016 under s.365 of the Fair Work

Act 2009 (the Act) alleging that he had been dismissed by Capital Smart Repairs (the

Respondent) in contravention of the general protections provisions in the Act. Mr Sullivan’s

application was incomplete in that no payment of the application fee accompanied his

application, nor did Mr Sullivan seek to have the application fee waived.

[2]        On 28 January 2016, the Commission contacted Mr Sullivan via email asking him to

provide the Commission with either a completed waiver form or the lodgment fee within

14 days or the application may be dismissed.

[3]        The Commission subsequently attempted to contact Mr Sullivan on a number of

occasions, i.e. 11 and 25 February and 27 March by telephone, letter and email regarding his

application and incomplete payment. On each occasion it was foreshadowed that

Mr Sullivan’s application may be dismissed unless he completed the waiver form or paid

the lodgement fee. Despite these repeated attempts to contact Mr Sullivan the Commission

has received no completed waiver or payment of application fee.

[4]        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.

[2016] FWC 2244

(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.”

[5]        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.”

[6]        Mr Sullivan 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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