Lutzu v Lee
Cited 1×
Applicant: Daniele Lutzu
Respondent: Lee T/A Skybury
Ratio
An application under s.365 of the Fair Work Act 2009 alleging dismissal in contravention of general protections must be accompanied by the prescribed application fee or a completed waiver form. The applicant's application was dismissed as not made in accordance with the Act (s.587(1)(a)) because he failed to comply with s.367(1) by neither paying the fee nor obtaining a waiver, despite repeated opportunities and notices from the Commission.
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 · 6
- Application received 3 February 2016 under s.365 FW Act alleging dismissal in contravention of general protections
- Applicant's waiver application was incomplete
- Commission contacted applicant multiple times (4 February, 18 February, 3, 18, and 22 March) by telephone, letter and email
- Applicant was warned on each occasion that application may be dismissed unless completed waiver form or fee paid
- Despite repeated contact attempts, applicant provided neither completed waiver form nor payment of lodgement fee
- Application was made without accompanying prescribed application fee or completed fee waiver
Factors
For
- Commission has statutory jurisdiction under s.587(1)(a) to dismiss applications not made in accordance with the Act
- s.367(1) expressly requires application to be accompanied by prescribed fee
- Commission made repeated, clear attempts to contact applicant and provide opportunity to comply
- Applicant received multiple warnings that application could be dismissed for non-compliance
Against
Legislation referenced
- Fair Work Act 2009 (Cth) s.365
- Fair Work Act 2009 (Cth) s.367(1)
- Fair Work Act 2009 (Cth) s.587(1)(a)
- Fair Work Act 2009 (Cth) Pt 3-2
Concept tags · 5
Principles · 2
articulates para 6
An application under s.365 of the Fair Work Act 2009 alleging dismissal in contravention of general protections must be accompanied by the prescribed application fee or a valid waiver thereof, being a mandatory procedural requirement under s.367(1).
articulates para 6
An application which fails to comply with s.367(1) is not made in accordance with the Act and is therefore subject to dismissal under s.587(1)(a).
Archived text (528 words)
Lutzu v Lee [2016] FWC 2249 (8 April 2016)
[2016] FWC 2249
FAIR WORK COMMISSION
DECISION
Fair Work Act 2009
s.365
—General protections
Daniele Lutzu
v
Lee T/A Skybury
(C2016/2464)
DEPUTY PRESIDENT KOVACIC
CANBERRA, 8 APRIL 2016
Application to deal with contraventions involving dismissal - invalid application - application dismissed.
[1]
Mr Daniele Lutzu (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 3 February
2016 under
s.365
of the
Fair Work Act 2009
(the Act) alleging that he had been dismissed by Lee T/A Skybury (the Respondent) in contravention of the general protections provisions
in the Act. Mr Lutzu’s application was incomplete in that his waiver application was incomplete.
[2]
On 4 February 2016, the Commission contacted Mr Lutzu via telephone to advise him that his waiver application was incomplete. Mr
Lutzu did not answer the call. A letter was also sent asking Mr Lutzu to provide the Commission with either the completed waiver
form or the lodgment fee within 14 days or the application may be dismissed.
[3]
The Commission subsequently attempted to contact Mr Lutzu on a number of occasions, i.e. 18 February and 3, 18 and 22 March by telephone,
letter and email regarding his application and incomplete waiver form. On each occasion it was foreshadowed that Mr Lutzu’s
application may be dismissed unless he completed the completed waiver form or paid the lodgement fee. Despite these repeated attempts
to contact Mr Lutzu the Commission has received no completed waiver form or payment of the lodgment 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:
(c) on its own initiative; or
(d) 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 Lutzu 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.
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