Benjamin Charles Jakovich-Turner v Australian Terminal Operations Management Pty Ltd, Citation Legal

[2024] FWC 1233

[2024] FWC 1233

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Benjamin Charles Jakovich-Turner
v

Australian Terminal Operations Management Pty Ltd, Citation Legal

(U2024/2195)

DEPUTY PRESIDENT CLANCY MELBOURNE, 10 MAY 2024

Application for an unfair dismissal remedy 

1. On 27 February 2024, Mr Benjamin Charles Jakovich-Turner 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).

1. The application was incomplete in that Mr Jakovich-Turner did not pay the required application fee, nor lodge a complete Form F80 – Application for waiver of the application fee (Form F80).

1. On 29 February 2024, the Commission emailed correspondence to Mr Jakovich-Turner’s nominated email address advising him that his application required payment of the application fee or a completed Form F80 if he wished to proceed with his application. That correspondence also warned that if payment was not made or a Form F80 was not received within 7 calendar days, his application may be dismissed. An SMS notification was also sent to Mr Jakovich-Turner’s nominated telephone number advising of the requirement to action the payment request email from the Commission.

1. On 12 March 2024, the Commission emailed correspondence to Mr Jakovich-Turner’s nominated email address reminding him that his application required payment of the filing fee or a completed Form F80 if he wished to proceed with his application. That correspondence also warned Mr Jakovich-Turner that if payment was not made or a Form F80 was not received, his application may be dismissed.

1. On 20 March 2024 the Commission emailed correspondence to Mr Jakovich-Turner’s nominated email address reminding him that his application required payment of the filing fee or a completed Form F80 if he wished to proceed with the application. That correspondence also warned that if payment is not made or a Form F80 is not received, the application may be dismissed. An attempt was also made to contact Mr Jakovich-Turner on his nominated telephone number. The call was not answered. A voicemail message was left advising Mr Jakovich-Turner that payment of the required fee was still outstanding.

1. A final attempt to contact Mr Jakovich-Turner on his nominated telephone number was made by the Commission on 27 March 2024. The call was not answered. A voicemail message was left advising Mr Jakovich-Turner that payment of the required fee was still outstanding. The Commission advised Mr Jakovich-Turner that if payment was not received by 2 April 2024, his application may be dismissed.

1. To date, Mr Jakovich-Turner has not paid the required application fee or filed a completed a Form F80.

1. In relation to an application made pursuant to s.394 of the FW Act, s.395(1) provides that the application “must be accompanied by any fee prescribed by the regulations.” At the time the application was made, the regulations prescribed a fee of $83.30. The regulations also allow for an application to be made for the fee to be waived.

1. Section 587(1) of the FW Act provides as follows:

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.

1. In considering all the circumstances, I am satisfied that the relevant application form was not accompanied by the prescribed fee and the application has not been made in accordance with the Act. Given the absence of the fee payment, it is likely that there is no valid application before the Commission[1] and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. Despite the reminders and multiple requests, Mr Jakovich-Turner has not paid the application fee. In these circumstances, I am satisfied that it is appropriate to dismiss the purported application. An Order[2] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].

[2] PR774906.

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