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Fair Work Act 2009
s.365 – General protections
Mr Matthew Rawson
v
Randstad Pty Limited
(C2020/8631)
DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 26 FEBRUARY 2021
Application to deal with contraventions involving dismissal.
[1] Mr Matthew Rawson (Applicant) has made an application under s 365 of the Fair
Work Act 2009 (Cth) (Act). He alleges that he was dismissed by Randstad Pty Limited 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 November 2020.
[4] On 27 November 2020, the Commission telephoned the Applicant regarding the
unpaid lodgement fee. A voicemail message was left requesting the Applicant contact the
Commission.
[5] That day, a letter was emailed to the Applicant and his representative, 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 telephone number advising the Applicant of a problem with his application and
requesting that he contact the Commission.
[6] On 15 and 17 December 2020, the Commission telephoned the Applicant regarding
his application which remained incomplete. On each occasion, a voicemail message was left
requesting the Applicant urgently contact the Commission.
[7] On 18 December 2020 the Commission telephoned the Applicant, however the call
was not answered and there was no option to leave a voicemail message. Shortly thereafter, a
telephone call was made to the Applicant’s representative, however the call was unanswered.
That day, a letter was emailed to the Applicant and his representative providing a further
period of 14 days for the lodgement fee to be paid or a completed waiver application to be
filed. The letter stated that in the absence of any advice from the Applicant within this period,
[2021] FWC 604
DECISION
E AUSTRALIA FairWork Commission
[2021] FWC 604
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the application may be dismissed. A SMS text message was also sent to the Applicant in
respect of this matter and requesting that he contact the Commission.
[8] To date, the Applicant has not paid the lodgement fee or filed a completed waiver
application.
Legislative framework
[9] 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)
[10] 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)
[2021] FWC 604
3
Consideration and conclusion
[11] 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.
[12] 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
Printed by authority of the Commonwealth Government Printer
PR726727
WORK COMMISSION THE SEAL OF THE
