Anthony Roberts v The Association of Wall and Ceiling Industries New South Wales & Act

[2022] FWC 704

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Anthony Roberts
v

The Association Of Wall And Ceiling Industries New South Wales & Act

(U2022/2325)

COMMISSIONER BISSETT

MELBOURNE, 30 MARCH 2022

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

On 22 February 2022 Mr Anthony Roberts 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). Mr Roberts alleged he was unfairly dismissed by The Association Of Wall And Ceiling Industries New South Wales & Act (the Respondent) on 1 February 2022.

The application was incomplete in that Mr Roberts did not pay the required fee or file a completed waiver form.

On 23 February 2022 the Commission attempted to contact Mr Roberts via telephone to discuss payment of the required fee however Mr Roberts did not answer the call. A voicemail message was left requesting Mr Roberts to call the Commission to make payment. The Commission phone number was provided.

Later that day, the Commission emailed correspondence to Mr Roberts’s nominated email advising that his application required payment of the filing fee or a completed waiver form if he wished to proceed with the application. That correspondence also warned that if payment was not made or a waiver form as not received within 14 days the application may be dismissed. An SMS notification was also sent to Mr Roberts’s nominated telephone number, advising that there was a problem with his application and requesting he contact the Commission.

A final attempt to contact Mr Roberts was made by the Commission on 8 March 2022 to obtain payment or a completed waiver form. Mr Roberts advised that he was not sure whether he wanted to proceed with the application and advised that he was obtaining legal advice that same day. The applicant was asked to respond by close of business 9 March 2022 to either make payment or advise if he wanted to withdraw his application. Mr Roberts acknowledged this. The Commission phone number was provided to Mr Roberts.

Following this call there has been no response from Mr Roberts, the required fee has not been paid and a completed waiver form has not 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:

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.

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[1] to this effect will be issued with this decision.

COMMISSIONER

[1] PR739841.

Printed by authority of the Commonwealth Government Printer

In the matter of Anthony Roberts v The Association Of Wall And Ceiling Industries New South Wales & Act, the applicant sought a remedy for unfair dismissal. The applicant contended that he was unfairly dismissed by the respondent on 1 February 2022. The application was dismissed by the Fair Work Commission on the basis that it was not accompanied by the prescribed fee and a waiver form, as required by the Fair Work Act 2009. The Commission had made multiple attempts to contact the applicant to resolve the incomplete application, however the applicant failed to respond or take any action to proceed with the application.
The key issue before the Commission was whether the application complied with the requirements of the Fair Work Act 2009. In particular, the Commission had to determine whether the applicant's failure to pay the required fee or file a completed waiver form amounted to the application not being made in accordance with the Act. The Commission found that the application was not accompanied by the prescribed fee and that it was not made in accordance with the Act. Accordingly, the application was dismissed under section 587(1)(a) of the Fair Work Act 2009.
The Commission noted that section 395 of the Fair Work Act 2009 requires an application to the Fair Work Commission to be accompanied by any fee prescribed by the regulations. Section 587(1)(a) of the Act provides that the Commission may dismiss an application if it is not made in accordance with the Act. The Commission held that the applicant's failure to pay the required fee or file a completed waiver form meant that the application was not made in accordance with the Act and was therefore dismissible. The Commission also noted that it had made multiple attempts to contact the applicant to resolve the incomplete application, however the applicant failed to respond or take any action.
The Fair Work Commission dismissed the application for unfair dismissal on the basis that it was not made in accordance with the Fair Work Act 2009. An order to this effect will be issued with this decision.

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