Application by Mark Joseph Hellawell

[2024] FWC 2363

[2024] FWC 2363

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Application by Mark Joseph Hellawell

(U2024/6311)

DEPUTY PRESIDENT EASTON SYDNEY, 3 SEPTEMBER 2024

Application for an unfair dismissal remedy – application dismissed.

1. On 3 June 2024 Mr Mark Joseph Hellawell made an application to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth).

1. For the reasons that follow I am satisfied that Mr Hellawell’s application has not been made in accordance with the Act and that it is appropriate to dismiss the application.

1. Section 395 of the Act is in the following terms:

“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. Mr Hellawell’s application was incomplete because Mr Hellawell did not pay the required fee or file a completed request to waive the fee.

1. Commission staff contacted Mr Hellawell on the following dates:

   ·   6 June 2024 by email and SMS;

   ·   19 June 2024 by telephone and email;

   ·   3 July 2024 by telephone;

   ·   17 July 2024 by telephone, email and SMS; and

   ·   31 July 2024 by email.

Mr Hellawell was advised that he must pay the filing fee or apply for a waiver if he wished to proceed with the application. Mr Hellawell was also warned that the application could be dismissed if the filing fee was not paid.

1. To date there has been no response from Mr Hellawell, no fee paid and no waiver request received.

1. Section 587 of the Act includes the following provisions:

“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.

…

(3) The FWC may dismiss an application:

(a)   on its own initiative; or

(b) on application.”

1. Mr Hellawell’s application was not made in accordance with the Act (per s.587(1)(a)) because the prescribed fee (per s.395) has not been paid or waived. Section 587 confers a discretion on the Commission to dismiss Mr Hellawell’s application.

1. Mr Hellawell has been given ample opportunity to rectify the deficiency in the application (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [15]-[16] and the cases cited therein). The Commission’s inquiries and warnings have largely been ignored.

1. In the circumstances I am satisfied that Mr Hellawell’s application should be dismissed.

1. I have separately made an order dismissing Mr Hellawell’s application (PR778884).

DEPUTY PRESIDENT

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