Aaron Cook v Sowerby's Crash Repairs Pty Ltd

[2019] FWC 549

[2019] FWC 549

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Aaron Cook
v
Sowerby’s Crash Repairs Pty Ltd
(U2018/12136)

DEPUTY PRESIDENT CLANCY MELBOURNE, 31 JANUARY 2019

Application for an unfair dismissal remedy.

[1] On 24 November 2018, Mr Aaron Cook made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Cook’s application was incomplete as he omitted to include page two of the Form F2 – Unfair Dismissal Application (Form F2). Further, Mr Cook applied for a waiver of the application fee, though did not respond to all of the questions which would enable the waiver to be assessed.

[3] On 26 November 2018, an email was sent to Mr Cook’s nominated email address advising that his Form F2 and application for fee waiver were both incomplete. Mr Cook was asked to provide the necessary documentation as soon as possible.

[4] As no response had been received, on 19 December 2018 an attempt was made to telephone Mr Cook. This was unsuccessful and no voicemail message could be left.

[5] On 7 January 2019, a further attempt was made to telephone Mr Cook and on that occasion, a voicemail message was left seeking a return call. The following day, another voicemail message was left for Mr Cook and a further email was sent. Mr Cook was advised if he did not pay the application fee or make an application to have the fee waived within 14 days, his application may be dismissed.

[6] To date, Mr Cook has not responded to the Commission’s correspondence.

[7] Section 395 of the Act, which deals with application fees, provides:

“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.”

[8] Section 587(1) 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.”

[9] Having regard to the circumstances of this matter, I am satisfied that as the application was not complete and was not accompanied by the fee prescribed by the Act, the application was not made in accordance with the Act. As such, Mr Cook’s application is dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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