1 Fair Work Act 2009 s.365 – General protections Mr Paul Bartkow v Norton's Transport Lismore Pty Ltd (C2020/9022) DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 26 FEBRUARY 2021 Application to deal with contraventions involving dismissal. [1] Mr Paul Bartkow (Applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). He alleges that he was dismissed by Norton's Transport Lismore 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 15 December 2020. [4] On 16 December 2020, the Commission telephoned the Applicant to obtain payment of the lodgement fee. The call was unanswered and accordingly a voicemail message was left requesting the Applicant contact the Commission. [5] That day a letter was emailed to the Applicant and his representative, Employee Dismissal Claims 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. [6] On 31 December 2020, the Commission telephoned the Applicant regarding his incomplete application. The call was unanswered. A voicemail message was left requesting the Applicant contact the Commission, or his application may be dismissed. [7] In the absence of payment of the lodgement fee or receipt of a completed waiver application, the Commission attempted to contact the Applicant by telephone on 5 January 2021. The call was unanswered, and a voicemail message was left. Subsequently, the Commission emailed a letter to the Applicant and his representative advising that unless the lodgement fee was paid or a completed waiver application was received within 14 days, the application may be dismissed. A SMS text message was also sent to the Applicant’s nominated contact number requesting that he contact the Commission regarding a problem with his application. [2021] FWC 613 DECISION [2021] FWC 613 2 [8] On 12 January 2021, the Commission telephoned the Applicant twice. On each occasion, the telephone call was immediately terminated. [9] To date, the Applicant has not paid the lodgement fee or filed a completed waiver application. Legislative framework [10] 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) [11] 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. (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) [2021] FWC 613 3 Consideration and conclusion [12] 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. [13] 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 Printed by authority of the Commonwealth Government Printer <PR726737>