Adam Percival v Johnny's Furniture Group Pty Ltd

[2020] FWC 5785

[2020] FWC 5785

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Adam Percival
v
Johnny’s Furniture Group Pty Ltd
(U2020/13519)

COMMISSIONER BISSETT MELBOURNE, 29 OCTOBER 2020

Application for an unfair dismissal remedy.

[1] On 12 October 2020, Mr Adam Percival made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The application was incomplete in that neither Mr Percival nor his representative, Employee Dismissal Claims Pty Ltd, did not pay the required fee or file a completed waiver form.

[3] On 13 October 2020, the Commission telephoned Mr Percival’s representative on the nominated telephone number to discuss payment of the required fee. The call was not answered and a voicemail message was left requesting a return call to make payment.

[4] Later that day, the Commission emailed correspondence to the nominated email addresses of Mr Percival and his representative advising that the application required payment of the filing fee or a completed waiver form if they wished to proceed with the application. That correspondence also warned that if payment is not made or a waiver form is not received within 14 days, the application may be dismissed.

[5] On 26 October 2020, the Commission again telephoned Mr Percival’s representative on the nominated telephone number to discuss payment of the required fee. The call was not answered and a further voicemail message was left requesting a return call and advising that if payment is not made or a waiver form is not received, the application may be dismissed.

[6] To date there has been no response from Mr Percival or his representative. The required fee has not been paid and a completed waiver form has not been received.

[7] Section 395 of the FW 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.

[8] Section 587(1) of the FW 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 accompanied by the fee prescribed by the FW Act, the application was not made in accordance with the FW Act. As such, the application is dismissed pursuant to s.587(1)(a) of the FW Act. An Order to this effect will be issued shortly.

COMMISSIONER

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