Mr Christopher Fairhall [2021] FWC 6167 (21 October 2021)

[2021] FWC 6167

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - application dismissed

• [1] Mr Christopher Fairhall (applicant) has made an application under s 365 of the Fair Work Act 2009 (Act) alleging that he was dismissed from his employment with an unnamed person or entity wholly or partly for a proscribed reason in contravention of the general protections provisions in Part 3-1 of the Act. The application was defective because it did not identify a respondent. Further, it was not accompanied by the fee prescribed by the regulations. The applicant has not responded to correspondence from the Commission alerting him to these deficiencies, nor has he rectified them. I have decided to dismiss the application under s 587 of the Act for the following reasons.

• [2] The application was lodged on 17 September 2021. On 21 September 2021, the Commission sent to the applicant a letter noting that the application was defective and was made without payment of the required fee. The letter stated that the applicant could apply for the fee to be waived if the fee would cause serious hardship. On 13 October 2021, the Commission wrote to the applicant a second time, noting that the application was defective, and that the lodgement fee had still not been paid. The letter stated that unless these matters were addressed by 20 October 2021, the matter may be dismissed.

• [3] The applicant has not amended the application and has not paid the lodgement fee or submitted a completed waiver application. He has not made any submissions as to why his application should not be dismissed.

• [4] Section 587 of the Act provides as follows:

(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

(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:

• [5] Section 367 states that an application under s 365 'must be accompanied by any fee prescribed by the regulations.' At the time the application was made, the regulations prescribed a fee of $74.90. The regulations also allow for an application to be made for the fee to be waived. The applicant has neither paid the fee nor lodged a completed fee waiver application. The application did not comply with s 367 of the Act. It also failed to comply with s 585 which require applications to be made in accordance with procedural rules. These deficiencies engage s 587(1)(a): the application was not made in accordance with the Act.

• [6] The Commission has a discretion to dismiss the application under s 587. I have decided to exercise this discretion because it is fair and reasonable to do so. The applicant was notified that the application was defective and had not been accompanied by the required fee. No action was taken to address these deficiencies within a reasonable time. I dismiss the application in accordance with s 587(1)(a) of the Act.

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