Wol Gak v JBS Australia T/A JBS Australia Pty Limited

[2019] FWC 36

[2019] FWC 36

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Wol Gak
v
JBS Australia T/A JBS Australia Pty Limited; Craig Evans
(C2018/6131)

DEPUTY PRESIDENT KOVACIC CANBERRA, 7 JANUARY 2019

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

[1] Mr Wol Gak (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 31 October 2018 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by JBS Australia T/A JBS Australia Pty Limited (First Respondent) and Craig Evans (Second Respondent) in contravention of the general protections provisions in the Act. Mr Gak’s application was incomplete in that no payment or application for waiver of the lodgment fee was completed.

[1] On 1 November 2018 the Commission left a voicemail requesting the Applicant either forward payment of the application fee or submit an application for waiver of the fee and to confirm the full name and email address of the second Respondent. A letter was also sent to the Applicant requesting payment of the application fee.

[2] The Applicant was contacted again by the Commission on 8 November 2018 where the Applicant said that he would send the details of the second Respondent and would "call us on another day" in relation to the payment. It was stressed to the Applicant that payment of his application should be made so his application could be progressed. The Applicant’s Representative forwarded the surname and email address of the Second Respondent and email address of the First Respondent on the 11 November 2018. On 12 November 2018 the Commission contacted the Applicant again leaving a voicemail requesting payment of the application fee.

[3] Mr Gak’s Representative contacted the Helpline on 27 November to confirm that the Commission had received the correct details for the Second Respondent and notified that the Applicant would be contacting the Commission in relation to payment.

[4] On 5 December 2018 the Commission left both the Applicant and his Representative a message asking to call the Commission, no response was received. A further message was left on 18 December indicating that unless payment was received by close of business on that day the application may be dismissed with a public decision to that effect. Later that day the Applicant’s Representative informed the Commission that they had been trying to contact the Applicant to organise payment but had been unsuccessful. The Applicant’s Representative filed a Form F54 on 19 December 2018.

[5] A final unsuccessful attempt to contact the Applicant was made on 21 December 2018. Following that telephone call a follow-up letter was sent to the Applicant.

[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 Gak 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.

Printed by authority of the Commonwealth Government Printer

< PR703591>