Timothy Plant v 360 Logistics Pty Ltd

[2021] FWC 905

[2021] FWC 905

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Timothy Plant
v
360 Logistics Pty Ltd
(C2020/6574)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 25 FEBRUARY 2021

Application to deal with contraventions involving dismissal.

[1] Mr Timothy Plant (Applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). He alleges that he was dismissed by 360 Logistics Pty Ltd in contravention of the general protection provisions of the Act.

[2] I have decided to dismiss the application. The reasons for this decision follow.

Context

[3] The application was received by the Commission on 26 August 2020.

[4] On 27 August 2020, the Commission telephoned the Applicant regarding the unpaid lodgement fee. The Applicant’s mobile phone service was switched off and there was no option to leave a voicemail message.

[5] That same day, a letter was emailed to the Applicant and his representative Ms Belinda Solomon of Employee Dismissal Claims, advising that the Applicant must pay the lodgement fee or file a completed application for waiver of the lodgement fee (waiver application) within 14 days, or the application may be dismissed. A SMS text message was also sent to the Applicant’s nominated contact number requesting that he contact the Commission because of a problem with his application.

[6] On 28 August 2020, the Applicant emailed the Commission regarding the circumstances of his employment’s cessation and advising that he seeks to be reinstated. Immediately thereafter, the Commission telephoned the Applicant however his mobile phone service was switched off, and there was no option to leave a voicemail message.

[7] On 10 September 2020, a further unsuccessful attempt was made by the Commission to telephone the Applicant.

[8] On 11 September 2020 the Commission telephoned the Applicant’s representative. A voicemail message was left advising that the lodgement fee had not been paid, nor had a completed waiver application been received by the Commission and in these circumstances the application may be dismissed. The Applicant’s representative was also advised of the Commission’s unsuccessful attempts in contacting the Applicant, and it was requested that she contact the Commission as soon as possible.

[9] On 14 September 2020, in the absence of payment of the lodgement fee or receipt of a completed waiver application, the Commission attempted to contact the Applicant and his representative as follows:

(a) at 9:22 am, by telephone to the Applicant’s representative. A voice message was left advising that the application may be dismissed unless the lodgement fee was paid, or a completed waiver application was received within seven days.

(b) at 9:22 am, by telephone to the Applicant. However, the Applicant’s mobile phone service was switched off and there was no option to leave a voicemail message.

(c) at 9:36 am, by letter emailed to the Applicant and his representative advising that the application remained incomplete and may be dismissed unless the lodgement fee was paid, or a completed waiver application was received within seven days.

(d) at 9:39 am, by email to the Applicant requesting that he urgently contact the Commission.

(e) at 12:04 pm, by SMS text message to the Applicant requesting that he contact the Commission because of a problem with his application.

[10] On 25 September 2020, Mr John Bingham of Employee Dismissal Claims contacted the Commission regarding the lodgement fee. During the call, the Mr Bingham advised that the lodgement fee would not be paid on behalf of the Applicant.

[11] On 9 October 2020, Mr Bingham contacted the Commission regarding the application. He was advised that the application remained incomplete.

[12] To date, neither the Applicant nor his representative have paid the lodgement fee or filed a completed waiver application.

Legislative framework

[13] 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.

(emphasis added)

[14] Section 587 of the Act provides that:

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

[15] Despite the Commission’s attempts to progress the application, the Applicant and his representative have failed to pay the lodgement fee or file a completed waiver application. Accordingly, the application is incomplete.

[16] In these circumstances, I am satisfied that the Applicant has failed to comply with s 367(1). Accordingly, the application has not been made in accordance with the Act. It is therefore dismissed pursuant to s 587(1)(a) of the Act.

DEPUTY PRESIDENT

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