Blake Christopher Duke v Alto Macarthur

[2022] FWC 596

[2022] FWC 596

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Blake Christopher Duke
v

Alto Macarthur

(U2022/2161)

COMMISSIONER BISSETT MELBOURNE, 17 MARCH 2022

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

1. On 18 February 2022, Mr Blake Christopher Duke 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 Duke alleged he was unfairly dismissed by Alto Macarthur (the Respondent) on 1 February 2022.

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

1. On 21 February 2022 the Commission attempted to contact Mr Duke via telephone to discuss payment of the required fee however, Mr Duke did not answer the call. A voicemail message was left requesting Mr Duke contact the Commission.

1. Later that day, the Commission emailed correspondence to Mr Duke 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 was not received within 14 days, the application may be dismissed. An SMS notification was also sent to Mr Duke’s nominated telephone number, advising that there was a problem with his application and requesting he contact the Commission.

1. A final attempt to contact Mr Duke was made by the Commission on 7 March 2022 to obtain payment or a completed waiver form. The call was not answered and a voicemail message was left advising Mr Duke that payment of the required fee was still outstanding and the matter was now at risk of being dismissed.

1. To date there has been no response from Mr Duke, the required fee has not been paid and a completed waiver form has not been received.

1. 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.

1. 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.

1. 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] PR739404.

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