Amal Michael Daoud v Bankstown Hospital Summary

[2023] FWC 2615

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Amal Michael Daoud
v

Bankstown Hospital

(U2023/7789)

COMMISSIONER BISSETT

MELBOURNE, 11 OCTOBER 2023

Application for relief from unfair dismissal

On 20 August 2023, Amal Michael Daoud (the Applicant) 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).

The Form F2 Unfair Dismissal Application was incomplete in that the Applicant did not pay the required lodgement fee or file a completed fee waiver form.

On 23 August 2023, the Commission telephoned the Applicant and advised that a blank fee waiver form was attached to the application. The Commission advised the Applicant to file a completed fee waiver form. The Commission emailed the Applicant a blank copy of the fee waiver form, at the Applicant’s request. Shortly following this telephone call, the Commission received correspondence from the Applicant enquiring about what needs to be submitted.

On 25 August 2023, the Commission sent correspondence to the Applicant’s nominated email address reminding him that his application required payment of the lodgement fee or a completed fee waiver form if he wished to proceed with the application. This correspondence also warned that if payment was not made or a fee waiver form was not received, the application may be dismissed.

On 29 August 2023, the Commission attempted to contact the Applicant regarding payment of the lodgement fee or the filing of a completed fee waiver form. However, the Applicant could not be reached. A voicemail message was left requesting that the Applicant contact the Commission.

On 6 September 2023, the Commission further attempted to contact the Applicant on his nominated telephone number to obtain payment of the application lodgement fee or a completed fee waiver form. The Applicant could not be reached. A voicemail message was left advising the Applicant to contact the Commission as payment of the required fee or a completed fee waiver form was still outstanding.

To date, no further correspondence has been received from the Applicant. The required fee has not been paid nor has a completed fee waiver form been received.

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.

Section 587(1) of the FW 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 prospect of success.

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.

COMMISSIONER
Printed by authority of the Commonwealth Government Printer

Amal Michael Daoud lodged an application with the Fair Work Commission for relief in respect of an unfair dismissal claim against Bankstown Hospital. The Applicant sought to have his dismissal, which he considered unfair, reviewed and potentially remedied under the Fair Work Act 2009. Despite multiple attempts by the Commission to contact the Applicant to rectify the deficiencies in his application, no payment of the required fee or completed fee waiver form was received.

The central issue before the Commission was whether the Applicant's failure to comply with the statutory requirements for the lodgement of an application, specifically the payment of the application fee or submission of a fee waiver, warranted the dismissal of his application. The Commission had to determine whether the statutory framework permitted the dismissal of an application on the basis of non-compliance with prescribed procedural requirements, and if so, whether the Applicant's case met the criteria for such dismissal.

The Commission found that the application did not comply with the statutory requirements, as it was not accompanied by the prescribed application fee, nor was a completed fee waiver form submitted. The Fair Work Act 2009 mandates that an application to the Fair Work Commission must be accompanied by the prescribed fee or a fee waiver, and the Commission is empowered to dismiss an application if it is not made in accordance with the Act. The Commission was satisfied that the Applicant's failure to comply with these requirements meant that the application was not made in accordance with the Act, and therefore, the application was dismissed under section 587(1)(a) of the Fair Work Act 2009.

The Commission dismissed the Applicant's application for relief on the grounds that it was not made in accordance with the Fair Work Act 2009 due to the non-payment of the required application fee and the absence of a completed fee waiver form. The Commission did not proceed to the merits of the unfair dismissal claim.

Amal Michael Daoud v Bankstown Hospital

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established