Tyrone Mason v Evolution Window Systems Pty Ltd
[2022] FWC 1921
•22 JULY 2022
[2022] FWC 1921
The attached document replaces the document previously issued with the above code on 22 July 2022.
Fixed error in duplicate paragraph [1] numbering and adjusted other paragraph numbers accordingly
Dylan Pietrocola
Associate to Deputy President Millhouse
Dated 22 July 2022
| [2022] FWC 1921 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Tyrone Mason
v
Evolution Window Systems Pty Ltd
(C2022/2582)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 22 JULY 2022 |
Application to deal with contraventions involving dismissal – application dismissed.
Mr Tyrone Mason (applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that he was dismissed by Evolution Window Systems Pty Ltd in contravention of the general protection provisions in Part 3-1 of the Act.
The application was not accompanied by the fee prescribed by the Fair Work Regulations 2009 (Cth) (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
The application was received by the Commission on 24 April 2022, it being filed by the applicant’s representative. The application was incomplete as it was missing essential information and it was not accompanied by payment of the application fee or a waiver application.
On 27 April 2022 the Commission telephoned the applicant and left a voicemail requesting a call back in relation to the non-payment of the filing fee and the ability to seek a waiver application. A text message to the same effect was also sent to the applicant. The Commission also sent a letter by email to both the applicant and the applicant’s representative with information on how to pay the filing fee and how to make a waiver application. The letter stated as follows:
“You have until Wednesday, 11 May 2022 to pay the fee or apply for a waiver.
If you don’t do this, your application may be dismissed. Please contact us if you have any questions about this.”
(emphasis omitted)
A further telephone call was made to the applicant on 28 April 2022. A voicemail was left requesting a return call by close of business that day otherwise the matter may be dismissed.
On 10 May 2022, a further voicemail in relation to the non-payment of the application fee was left with the applicant.
On 19 May 2022, the Commission left a further voicemail advising the applicant that it was yet to receive payment of the filing fee, and the application was at risk of being dismissed if not paid within seven days. A letter was also sent to the applicant and the applicant’s representative advising how to pay the application fee or make a waiver application.
On 27 May 2022, the Commission made another call to the applicant. The call was not answered, and no voicemail was left.
On 10 June 2022, the Commission called the applicant who answered the call. The Commission detailed the steps taken by it to prompt payment of the application fee or the making of a waiver application. Notwithstanding that the previous telephone calls had been made to the same telephone number, the applicant advised that he had not heard of any of these steps. It was agreed that the Commission would email to the applicant instructions on how to pay the filing fee or make a waiver application.
The Commission sent the email as agreed later on 10 June 2022. It attached details on how to make payment or a waiver application and advised that the matter may be dismissed if this was not actioned by the applicant by 16 June 2022.
In the absence of compliance by the applicant, the Commission called the applicant and left a voicemail on 27 June 2022. The voicemail advised that the application may be dismissed.
On 19 July 2022, a further attempt was made to call the applicant. The applicant seemingly answered the call and then hung up the phone when the Commission identified itself. The Commission attempted to call the applicant again immediately and it went straight to voicemail. The Commission advised by way of a voicemail that the application would be considered for dismissal.
To date, the applicant has not paid the filing fee or filed a completed waiver application.
Legislative framework
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.
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
The applicant has neither paid the filing 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.
The application is dismissed.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
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