Sullivan v Capital Smart Repairs — Benchmark — WA Industrial Relations Case Database

Ratio

An application under s.365 (general protections dismissal) was not made in accordance with the Fair Work Act because it was not accompanied by the prescribed application fee and no waiver was sought, and therefore the application was dismissed under s.587(1)(a) as not having been made in accordance with the Act.

Outcome

Against applicant dismissed_jurisdiction

Authority signal

Cited 1× Signal-weighted score: 0.0

Derived from how later decisions have treated this case. Dark green = leading authority, green = positively treated, grey = neutral or sparse data, amber = caution, red = treated negatively.

Key facts · 5

Application received 28 January 2016 without payment of application fee
No waiver form submitted with application
Commission contacted applicant multiple times (28 January, 11 February, 25 February, 27 March) requesting fee payment or waiver form
Applicant failed to respond to all requests from Commission
Application alleged dismissal in contravention of general protections provisions

Factors

For

Against

Non-compliance with s.367(1) requirement to pay application fee or seek waiver
Failure to respond to multiple attempts by Commission to obtain compliance

Legislation referenced

Fair Work Act 2009 (Cth) s.365
Fair Work Act 2009 (Cth) s.367
Fair Work Act 2009 (Cth) s.587

Concept tags · 4

[P]General protections (FW Act Pt 3-1) [P]Adverse action [P]Jurisdictional objection [S]Time limits for filing

Principles · 1

articulates para 6

An application under s.365 of the Fair Work Act must be accompanied by the prescribed application fee or have the fee waived in accordance with s.367, and failure to comply with this requirement means the application is not made in accordance with the Act and may be dismissed under s.587(1)(a).

Related cases · 10

Decisions sharing two or more primary concepts with this case.

Citation	Court	Date	Outcome	Shared	Cited
[2023] FCA 259 Deam v Starlight Children's Foundation Australia	Federal Court	2023-03-24	Against applicant	3	6
[2022] FWCFB 146 Mr Glenn Charles Baughen v Bawinanga Aboriginal Corporation	FWC — Full Bench	2022-08-23		3	0
[2016] FWC 4989 Hazledine v Wakerley & Giddings	FWC	2016-01-01	Against applicant	3	2
[2016] FWC 771 Ludgate v West Australian Rifle Association Inc	FWC	2016-01-01	Against applicant	3	1
[2016] FWC 1424 Crisafio v Cornerstone Holdings Pty Ltd	FWC	2016-01-01	Resolved	3	1
[2016] FWC 2246 Loizides v Knox Food Group Pty Ltd	FWC	2016-01-01	Against applicant	3	1
[2016] FWC 2313 Duncan v Joondalup Hospital Pharmacy	FWC	2016-01-01	Against applicant	3	1
[2016] FWC 3507 Kape v Golden Mile Loopline Railway Society	FWC	2016-01-01	Against applicant	3	1
[2022] FWC 1499 Document: 2022FWCFB14625687486	FWC	2022-08-23		3	0
[2024] FWC 2 Vinh Khuong Tran v Australian Pharmaceutical Manufacturers Pty Ltd	FWC	2024-01-01		3	0

Archived text (518 words)

Sullivan v Capital Smart Repairs [2016] FWC 2244 (8 April 2016) [2016] FWC 2244 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.365 —General protections Aaron Sullivan v Capital Smart Repairs (C2016/2397) DEPUTY PRESIDENT KOVACIC CANBERRA, 8 APRIL 2016 Application to deal with contraventions involving dismissal - invalid application - application dismissed. [1] Mr Aaron Sullivan (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 28 January 2016 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Capital Smart Repairs (the Respondent) in contravention of the general protections provisions in the Act. Mr Sullivan’s application was incomplete in that no payment of the application fee accompanied his application, nor did Mr Sullivan seek to have the application fee waived. [2] On 28 January 2016, the Commission contacted Mr Sullivan via email asking him to provide the Commission with either a completed waiver form or the lodgment fee within 14 days or the application may be dismissed. [3] The Commission subsequently attempted to contact Mr Sullivan on a number of occasions, i.e. 11 and 25 February and 27 March by telephone, letter and email regarding his application and incomplete payment. On each occasion it was foreshadowed that Mr Sullivan’s application may be dismissed unless he completed the waiver form or paid the lodgement fee. Despite these repeated attempts to contact Mr Sullivan the Commission has received no completed waiver or payment of application fee. [4] 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. Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2 , see section 399A. (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.” [5] 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.” [6] Mr Sullivan 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 ss.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 <Price code A, PR578899>