1
Fair Work Act 2009
s.365—General protections
Fillipo Tapner
v
R.P.M. Tyres (Hastings) Pty. Ltd.
(C2023/4583)
DEPUTY PRESIDENT CLANCY MELBOURNE, 18 AUGUST 2023
Application to deal with contraventions involving dismissal – application dismissed.
[1] On 31 July 2023, Mr Fillipo Tapner made an application under s.365 of the Fair Work
Act 2009 (Cth) (Act). Mr Tapner alleges that he was dismissed in contravention of the general
protection provisions in Part 3-1 of the Act.
[2] The application was lodged by Employee Dismissals, an entity that indicated in the
Form F8 General protections application involving dismissal form (Form F8) that it was Mr
Tapner’s representative. The Application was not accompanied by the application fee
prescribed by the Fair Work Regulations 2009 (Cth) (Regulations). Nor was a completed Form
F80 – Application for waiver of the application fee (Form F80) attached. In its email to the
Commission accompanying the Form F8, Employee Dismissals outlined the following:
“Our client shall be responsible for making payment of the lodgement fee in this
matter. Please contact the Applicant on the telephone number specified in the Form F8
to process payment of the lodgement fee by credit or debit card.
Please kindly contact our office by reply email should you experience any issues
processing timely payment of the lodgement fee, so that we can raise any such issues
with our client as a matter of priority.”
[3] On 3 August 2023, the Commission emailed correspondence to Mr Tapner’s nominated
email address advising him that his application required payment of the application fee or a
completed Form F80, if he wished to proceed with the application. The email further stated as
follows:
“Please pay the application fee within 7 calendar days (or apply to have the fee
waived) so we can progress your case.
…
If you don’t make payment within 7 days your application may be dismissed.”
[2023] FWC 2070
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 2070
2
[4] On 4 August 2023, an SMS notification was sent to Mr Tapner’s nominated telephone
number. The SMS advised Mr Tapner to take action in compliance with the email from the
Commission regarding payment of the application fee.
[5] On 7 August 2023, the Commission emailed correspondence to Mr Tapner’s nominated
email address, reminding him that his application required payment of the application fee, or a
completed Form F80 if he wished to proceed with the application. The correspondence
instructed Mr Tapner on how to pay the application fee or complete a Form F80, and further
stated as follows:
“Reminder: You need to pay the application fee (or apply to have the fee
waived) or your application may be dismissed.”.
[6] On 10 August 2023 a final attempt was made by the Commission to contact Mr Tapner
on his nominated telephone number. The call was not answered, and a voicemail message was
left explaining to Mr Tapner that his application fee was still outstanding and that his
application was at risk of being dismissed.
[7] On 11 August 2023, the Commission emailed correspondence to Employee Dismissals.
This outlined the content of the correspondence that had been sent to Mr Tapner on 7 August
2023 and in particular, highlighted that Mr Tapner needed to pay the application fee (or apply
to have the fee waived) or his application may be dismissed.
[8] To date, there has been no response to this correspondence by Employee Dismissals and
Mr Tapner has neither paid the application fee nor filed a completed Form F80.
Legislative framework
[9] 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 $77.80. The regulations also allow
for an application to be made for the fee to be waived.
[10] 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.
…
[2023] FWC 2070
3
(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.
Consideration and conclusion
[11] In considering all the circumstances, I am satisfied that the application form in question
was not accompanied by the prescribed fee and the application has not been made in accordance
with the Act. Given the absence of the fee payment, it is likely that there is no valid application
before the Commission1 and no further action is required. A non-compliant application is
directly contemplated by s.587(1)(a) of the Act.
[12] Despite the attempts by the Commission to contact him, the reminders and the multiple
requests, Mr Tapner has not responded. His representative, Employee Dismissals, has also failed
to respond to the Commission. In these circumstances, I am satisfied that it is appropriate in all
the circumstances to dismiss the purported application.
[13] The application is dismissed. An Order2 to this effect will be issued with this decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR765337
1 Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly [2017] FWCFB 763
at [29].
2 PR765338.
THE FAI ORK COMMISSION THE SEA
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb763.htm
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr765338.pdf
