Andrew Paul v Southern Roofing Pty. Limited

[2018] FWC 469

[2018] FWC 469

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Andrew Paul

v

Southern Roofing Pty. Limited

(U2017/13745)

COMMISSIONER BISSETT MELBOURNE, 23 JANUARY 2018

Application for an unfair dismissal remedy.

1. On 22 December 2017, Mr Andrew Paul made an application (the Application) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth) (the Act). The covering email to the Application, filed by his representative, said “[t]he Applicant may be contacted on his mobile telephone number to take payment of the filing fee by card.”

1. Also on 22 December 2017, the Fair Work Commission (the Commission) attempted to telephone Mr Paul in relation to payment of the filing fee, however the mobile number did not connect. The Commission subsequently telephoned Mr Paul’s representative who advised that it would attempt to contact Mr Paul and return the Commission’s call. Later that day, correspondence was sent to Mr Paul noting that if the application fee was not paid or an application to have the fee waived was not completed within 14 days, the Application may be dismissed.

1. As a completed waiver form had not been received or payment made, the Commission attempted to telephone Mr Paul on 5 January 2018, however the mobile number did not connect. On the same day, the Commission contacted Mr Paul’s representative via telephone and advised that if payment or a waiver form was not received within 7 days, the Application may be dismissed. Subsequently, the Commission was advised that another attempt would be made to contact Mr Paul regarding his unpaid application.

1. To date, Mr Paul has not made payment of the application fee and no application for fee waiver has been received.

1. Section 395, 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.

1. 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.

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

COMMISSIONER

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