Adriano Ayad v Designer Image Robes Pty Ltd [2023] FWC 1778

1 Fair Work Act 2009 s.365—General protections Adriano Ayad v Designer Image Robes Pty Ltd (C2023/1144) VICE PRESIDENT CATANZARITI SYDNEY, 20 JULY 2023 Application to deal with contraventions involving dismissal – application dismissed. [1] On 3 March 2023, Adriano Ayad (applicant) has made an application under s.365 of the Fair Work Act 2009 (Cth) (Act). The applicant alleges that he was dismissed in contravention of the general protection provisions in Part 3-1 of the Act. [2] The application was not accompanied by the fee prescribed by the Fair Work Regulations 2009 (Cth) (regulations) or by a completed application for waiver of the lodgement fee (waiver application). The applicant has not responded to correspondence from the Commission alerting him to this deficiency, nor has the deficiency been rectified. I have decided to dismiss the application for the following reasons. Context [3] On 6 March 2023, the Commission emailed correspondence to Mr Ayad’s nominated email address advising that his application required payment of the filing fee or a completed waiver form 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.” [4] An SMS notification was also sent to Mr Ayad’s nominated telephone number on 7 March 2023. The SMS advised Mr Ayad to take action in compliance with the email from the Commission regarding payment of the application fee. [5] On 9 March 2023, the Commission emailed correspondence to Mr Ayad’s nominated email address reminding that his application required payment of the filing fee or a completed waiver form if he wished to proceed with the application. The correspondence instructed the applicant on how to pay the application fee or make a waiver application and further stated as follows: [2023] FWC 1778 DECISION -- 1 of 3 -- [2023] FWC 1778 2 “Reminder: You need to pay the application fee (or apply to have the fee waived) or your application may be dismissed.”. [6] A final attempt to contact Mr Ayad on his nominated telephone number was made by the Commission on 16 March 2023 to obtain payment or a completed waiver form. The call was not answered, and a voicemail message was left advising Mr Ayad that payment of the required fee was still outstanding. [7] An attempt to contact Mr Ayad’s representative by telephone was made on 23 March 2023. The call was not answered, and a voicemail message was left. An email was then sent to Mr Ayad’s representative advising the filing fee has not been paid by the Applicant and requested they communicate with the Applicant to pay the filing fee. The email further stated as follows: “Please be aware that if the filing fee is not paid by the COB today (Thursday 23 March 2023), the matter will be dismissed.” [8] To date, the applicant has not paid the lodgement fee or filed a completed waiver application. 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. … (2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application: (a) is frivolous or vexatious; or -- 2 of 3 -- [2023] FWC 1778 3 (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] The applicant has neither paid the lodgement fee nor sought a fee waiver. Accordingly, the application is not made in accordance with s.367 of the Act. [12] The applicant has taken no action to address the deficiency despite being notified of it by the Commission on multiple occasions. In these circumstances, I have decided to exercise my discretion to dismiss the application in accordance with s.587(1)(a) of the Act. [13] The application is dismissed. VICE PRESIDENT Printed by authority of the Commonwealth Government Printer <PR764437> -- 3 of 3 --