Aalambir Saran v Global Gypsum Summary

[2024] FWC 3373

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Aalambir Saran
v

Global Gypsum

(U2024/13429)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 4 DECEMBER 2024

Application for relief from unfair dismissal – dismissal under s.587 at the Commission’s initiative.

Mr Aalambir Saran lodged an unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on 10 November 2024.

The application was incomplete in that Mr Saran did not pay the required application fee or lodge a completed Form F80 – Application for waiver of the application fee (Form F80). Mr Saran lodged an incomplete Form F80 on 10 November 2024.

On 14 November 2024, the Commission emailed correspondence to Mr Saran’s nominated email address informing him that payment of the application fee or a completed Form F80 was required for the Commission to progress his unfair dismissal application. That correspondence warned Mr Saran that if payment was not made or a completed Form F80 was not received within 7 calendar days, his unfair dismissal application may be dismissed.

On 18 November 2024, the Commission emailed correspondence to Mr Saran’s nominated email address, reminding him that his application required payment of the application fee or a completed Form F80. That correspondence also warned that if payment was not made or a Form F80 was not received, his application may be dismissed.

A final attempt to contact Mr Saran was made by the Commission by telephone on 21 November 2024 to follow up on the outstanding application fee. Mr Saran could not be reached, and a voicemail message was left requesting Mr Saran to make the required payment or lodge a completed Form F80.

To date, there has been no response from Mr Saran, the required fee has not been paid and a completed Form F80 has not been received.

Section 395 of the Act, which deals with application fees, provides as follows:

“395 Application fees
(1) An application to the FWC under this Division 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 this Division; 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.” (bold text in the original)

In relation to an application made pursuant to s.394 of the Act, s.395(1) relevantly provides that the application “must be accompanied by any fee prescribed by the regulations.” Regulation 3.07 of the Fair Work Regulations 2009 (Cth) sets out the amount of the fee for making an unfair dismissal application.

Section 587 of the Act relevantly 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.

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.
…
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.” (bold text in the original)

The material before the Commission indicates that the relevant application form was not accompanied by the prescribed fee and that Mr Saran has not lodged a completed Form F80. I am satisfied that the application has not been made in accordance with the Act. Given the absence of the fee payment, it is likely that there is no valid application before the Commission and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. Despite the attempts by the Commission to contact Mr Saran, there has been no response. In these circumstances, I am satisfied that it is appropriate in all the circumstances to dismiss the purported application. An order[1] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] PR782011.

Printed by authority of the Commonwealth Government Printer

Aalambir Saran filed an unfair dismissal application against Global Gypsum under section 394 of the Fair Work Act 2009. The application was incomplete as it lacked the required application fee and a completed Form F80 for a waiver of the fee. Despite multiple attempts by the Fair Work Commission to notify Mr Saran of the deficiencies, he did not respond, leading to the application's dismissal. The Fair Work Commission, under section 587 of the Act, dismissed the application on its own initiative, as it was not made in accordance with the Act, and there was no likelihood of success. The decision was based on the failure to comply with the fee requirements as prescribed in section 395 and regulation 3.07 of the Fair Work Regulations 2009.

The central legal issue was whether Mr Saran's application met the statutory requirements under the Fair Work Act 2009 and the Fair Work Regulations 2009. Specifically, the Court needed to determine if the application could be considered valid despite the absence of the required fee and a completed Form F80. Section 395 of the Act mandates that a fee must accompany an application to the Fair Work Commission, and section 587 allows for the dismissal of an application if it is not made in accordance with the Act. The Court found that Mr Saran's application did not comply with these requirements and therefore could not be considered valid.

The Fair Work Commission found that Mr Saran's application was not in compliance with the statutory requirements, as it did not include the necessary fee or a completed Form F80. The Commission noted that despite multiple attempts to contact Mr Saran and inform him of the deficiencies, there was no response. Given the absence of a valid application and the lack of any reasonable prospects of success, the Commission dismissed the application. The Court concluded that the application was frivolous and vexatious, and it was appropriate to dismiss it under section 587(1)(a) of the Act. An order dismissing the application was issued.

The Fair Work Commission dismissed the unfair dismissal application filed by Aalambir Saran against Global Gypsum. The dismissal was based on the failure of the application to comply with the statutory requirements under the Fair Work Act 2009 and the Fair Work Regulations 2009, specifically the non-payment of the required application fee and the lack of a completed Form F80.

Aalambir Saran v Global Gypsum

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established