Ashley McDonald v Sims Metal T/A Qld Metals Rocklea

[2021] FWC 2783

[2021] FWC 2783

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ashley McDonald
v
Sims Metal T/A QLD Metals Rocklea
(U2021/2948)

COMMISSIONER BISSETT MELBOURNE, 18 MAY 2021

Application for an unfair dismissal remedy.

[1] On 8 April 2021 Mr Ashley McDonald 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).

[2] The application was incomplete in that Mr McDonald did not pay the required fee or file a completed waiver form that was accessible to Commission staff.

[3] On 9 April 2021 the Commission attempted to contact Mr McDonald on his nominated telephone number to inform him that the waiver form submitted was password protected and unable to be accessed. However, Mr McDonald did not answer the call. A voicemail message was left requesting the Mr McDonald submit a completed waiver form that was not password protected.

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

[5] On 9 April 2021, Mr McDonald emailed the Commission twice. The first email stated that Mr McDonald wanted to proceed with the application. In the second email, Mr McDonald stated that he could not upload a completed waiver form because he could not locate his payslip. Mr McDonald did however attach a payslip to the email.

[6] A further attempt to contact Mr McDonald by telephone was made by the Commission on 21 April 2021 to obtain payment or a completed waiver form. The call was not answered and a voicemail message was left advising Mr McDonald that payment of the required fee was still outstanding or that he was required to submit a completed waiver form.

[7] A final attempt to contact Mr McDonald was made by email on 28 April 2021 reiterating that the waiver form originally submitted on 9 April 2021 was password protected and that he was required to provide a new form or make payment by close of business 4 May 2021. The email further advised that if he failed to do so the matter may be dismissed.

[8] Despite Mr McDonald having responded to some of the Commission’s communications, to date the required fee has not been paid nor has a completed waiver form been received.

[9] 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.

[10] 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.

[11] Having regard to the circumstances of this matter, I am satisfied that as 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 shortly.

COMMISSIONER

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