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Fair Work Act 2009
s.365 – General protections
Mr Jesse Martin
v
Ironmen Pty Ltd
(C2020/8529)
DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 26 FEBRUARY 2021
Application to deal with contraventions involving dismissal.
[1] Mr Jesse Martin (Applicant) has made an application under s 365 of the Fair Work Act
2009 (Cth) (Act). He alleges that he was dismissed by Ironmen 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 19 November 2020.
[4] On 23 November 2020, the Commission telephoned the Applicant regarding the
unpaid lodgement fee. The Applicant advised that he intended to contact the Commission
shortly to make payment. An email was subsequently sent to the Applicant advising him of
the matter number associated with his application. A separate letter was then emailed to the
Applicant and his representative Employee Dismissal Claims that day, 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.
[5] Later the same day, the Applicant emailed the Commission advising that prior to
making payment of the lodgement fee he wanted to amend his application to correct an error
in the respondent company’s details. This was supplemented by a further email from the
Applicant in which he forwarded a correspondence trail between himself and his
representative. The correspondence trail included advice from the Applicant to his
representative that he sought to amend the respondent company name in the application.
[6] On 24 November 2020, the Commission telephoned the Applicant regarding his
correspondence of the previous day. During the call, the Applicant sought clarification in
respect of the process for amending his application. The Applicant indicated that he was on
notice of the 14-day period in which he was required to pay the lodgement fee or file a
completed waiver application.
[2021] FWC 603
DECISION
E AUSTRALIA FairWork Commission
[2021] FWC 603
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[7] In the absence of payment of the lodgement fee or receipt of a completed waiver
application, the Commission telephoned the Applicant on 8 December 2020. A voicemail
message was left advising that the application remained incomplete and may be dismissed.
[8] On 9 December 2020, the Commission telephoned the Applicant’s representative. A
voicemail message was left advising that the application may be dismissed within seven days.
[9] Shortly after, the Commission telephoned the Applicant. During the telephone call, the
Applicant advised that he had not made payment of the lodgement fee because the
respondent’s details in the application were incorrect. The Applicant said that he had not
received a response from his representative in respect of this matter. The Applicant was
advised that unless the lodgement fee was paid or a completed waiver application was
received by the Commission within seven days, his application may be dismissed. A letter to
this effect dated 9 December 2020 was emailed to the Applicant and his representative. A
SMS text message was also sent to the Applicant’s nominated contact number requesting that
he contact the Commission in respect of his application.
[10] In the absence of any communication, the Commission telephoned the Applicant on 21
December 2020. A voicemail message was left requesting an urgent return call.
[11] To date, the Applicant has not paid the lodgement fee or filed a completed waiver
application.
Legislative framework
[12] 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)
[13] 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.
[2021] FWC 603
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(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
[14] 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.
[15] 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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PR726726
WORK COMMISSION THE SEAL OF THE
