Barry Leckenby v HammondCare

[2020] FWC 2365

[2020] FWC 2365

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Barry Leckenby
v
HammondCare
(U2020/4477)

COMMISSIONER BISSETT MELBOURNE, 7 MAY 2020

Application for an unfair dismissal remedy.

[1] On 9 April 2020, Mr Barry Leckenby 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 Leckenby did not pay the required fee or file a completed waiver form.

[3] 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.

[4] On 9 April 2020, the Commission attempted to contact Mr Leckenby twice on his nominated telephone number to discuss payment of the required fee. However, Mr Leckenby did not answer and there was no option to leave a voice message.

[5] Later that day, the Commission emailed correspondence to Mr Leckenby’s nominated email address 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 noted that if payment is not made or a waiver form is not received within 14 days, the application may be dismissed.

[6] On 9 April 2020, Mr Leckenby emailed the Commission:

“Please be advised the advice on his email is contrary to the advice on your website, which states an officer from your office would call me for payment details.”

[7] On 14 April 2020, the Commission emailed correspondence to Mr Leckenby advising that the Commission had attempted to contact him and requested he contact the Commission to make payment.

[8] On 23 April 2020, the Commission attempted to contact Mr Leckenby. A voicemail message was left advising Mr Leckenby that payment of the required fee was still outstanding and that if we did not receive payment or a completed waiver form as soon as possible the matter may be closed and a decision published on our website. The Commission requested Mr Leckenby contact the Registry to discuss the matter further.

[9] To date there has been no response from Mr Leckenby, the required fee has not been paid and a completed waiver form has not been received.

[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 prospects of success.

[11] 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 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR719145>