Vince Le v The Shower Repair Centre T/A the Shower Repair Centre

[2017] FWC 6652

[2017] FWC 6652

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Vince Le
v
The Shower Repair Centre T/A The Shower Repair Centre
(C2017/3240)

DEPUTY PRESIDENT KOVACIC CANBERRA, 13 DECEMBER 2017

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

[1] Mr Vince Le (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 15 June 2017 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by The Shower Repair Centre T/A The Shower Repair Centre (the Respondent) in contravention of the general protections provisions in the Act. Mr Le’s application was incomplete in that no payment or application for waiver of the lodgment fee was completed.

[2] On 16 June 2017 the Commission contacted Mr Le via email regarding his application. Mr Le was asked to provide the Commission with payment or an application for waiver of the lodgment fee within 14 days or his application may be dismissed.

[3] On 21 July 2017 the Commission unsuccessfully attempted to contact Mr Le via telephone, the telephone number was disconnected. Subsequently an email and a letter was sent asking Mr Le to provide the Commission with a completed waiver form or lodgment fee within 14 days or his application may be dismissed.

[4] The Commission subsequently attempted to contact Mr Le on 1 December 2017 by email regarding his application. The correspondence reiterated previous advice that his application may be dismissed unless he either completed the waiver form or paid the lodgement fee.

[5] Despite these repeated attempts to contact Mr Le the Commission has received no completed waiver form or lodgment fee payment in respect of Mr Le’s application.

[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 Le 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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