Andrew McGlashan v Sodexo

[2020] FWC 1770

[2020] FWC 1770

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew McGlashan
v
Sodexo
(U2020/1830)

COMMISSIONER BISSETT MELBOURNE, 3 APRIL 2020

Application for an unfair dismissal remedy – dismissal under s.587 at the Commission’s initiative – application dismissed.

[1] On 19 February 2020, Mr Andrew McGlashan made an application to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act).

[2] In his Form F2 – Unfair Dismissal Application Mr McGlashan advised that he commenced employment with Sodexo on 5 September 2019 and that his dismissal took effect on 31 January 2020.

[3] On 20 February 2020 following a telephone call with Mr McGlashan to discuss his application, correspondence was sent to Mr McGlashan’s email address confirming that on the basis of the information contained in his application, he had not served the minimum employment period. The correspondence required Mr McGlashan to file any documents/evidence to support his claim of having served the minimum employment period within 14 days. Mr Meredith was also advised that his application required payment of the filing fee or a completed fee waiver form if he wished to proceed with his application. The correspondence warned that in the absence of a response his application may be dismissed.

[4] As no response was received from Mr McGlashan, on 3 March 2020 the Commission telephoned Mr McGlashan on his nominated telephone number to discuss his application. A recorded message advised “the number you have called may be switched off, try calling again later”.

[5] Later that day correspondence was sent to Mr McGlashan’s nominated email address advising that unless contact was made with the Commission within 7 days with an acceptable explanation as to why he has not responded to the Commission’s direction, his application would be determined based on the material before the Commission.

[6] On 17 March 2020 the Commission made a final attempt to telephone Mr McGlashan on his nominated telephone number. Mr McGlashan did not answer the call and voicemail message was left requesting he contact the Commission.

[7] To date, Mr McGlashan has not responded to the Commission’s correspondence, payment of the required fee has not been made and a completed fee waiver form has not been filed with the Commission.

[8] 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.

[9] Section 587(1) of the FW Act provides that:

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.

[10] Further, 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 under ss.587(1)(a) and (c) of the FW Act. An Order 1 to this effect will be issued shortly. Given my decision in this respect it is not necessary to further consider the minimum employment period matter.

COMMISSIONER

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