Blake Cook v Bidfood Australia Summary

[2024] FWC 1832

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Blake Cook
v

Bidfood Australia

(U2024/6713)

DEPUTY PRESIDENT EASTON

SYDNEY, 18 JULY 2024

Application for an unfair dismissal remedy

On 12 June 2024, Mr Blake Cook made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act).

The application form filed by Mr Cook was incomplete insofar as Mr Cook did not pay the required application fee or apply for a waiver of the fee. The waiver form attached to the application was completely blank.

On 16 June 2024 Commission staff emailed Mr Cook advising that the provided fee waiver was blank and requesting he send a completed fee waiver to the Commission as soon as possible. That email also advised that if the completed fee waiver was not provided within 14 days, the application may be dismissed.

On 18 June 2024 Commission staff attempted to call Mr Cook to request the missing details. He did not answer the call. A voicemail message was left asking that the completed waiver be sent back to the Commission as soon as possible.

On 9 July 2024 Commission staff attempted to call Mr Cook. A voicemail message was left requesting the completed fee waiver be sent or the Applicant contact the Commission to pay the fee. The voicemail also stated that the matter was at risk of being dismissed.

To date, no response has been received and Mr Cook has not provided the necessary details as requested.

Section 395 of the 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.

Section 587 of the 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 prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A.

…

(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.

Mr Cook’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 Cook’s application.

I am satisfied that Mr Cook’s application should be dismissed. Mr Cook has been given ample opportunity to rectify the deficiency in the application. The Commission’s inquiries, requests and warnings have largely been ignored.

I have separately made an order dismissing Mr Cook’s application (PR776944).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Blake Cook lodged an application with the Fair Work Commission under the Fair Work Act 2009, seeking a remedy for an alleged unfair dismissal by Bidfood Australia. The application, however, was incomplete as Cook did not pay the required fee or submit a properly completed fee waiver form. Despite multiple warnings and requests by Commission staff for Cook to submit the missing details, he failed to comply, resulting in the Commission considering dismissal of the application under s.587 of the Act. The Deputy President concluded that the application should be dismissed due to non-compliance with the Act and the failure of Cook to respond to the Commission's requests.

The primary legal issue before the Deputy President was whether Cook's application should be dismissed for non-compliance with the Act. Specifically, the court needed to determine whether the application was defective under s.395 due to the non-payment of the application fee or the lack of a completed fee waiver, and whether dismissal was warranted under s.587(1)(a). Given that Cook had been given numerous opportunities to rectify the deficiencies and had ignored these requests, the Deputy President found that the application did not comply with the statutory requirements and was therefore dismissible.

In deciding to dismiss the application, the Deputy President noted that Cook had been given ample opportunity to provide the missing information but had failed to respond to the Commission's inquiries, requests, and warnings. The Deputy President exercised the discretion under s.587 to dismiss the application due to non-compliance with the Act. The decision was made on the basis that Cook's repeated failure to address the deficiencies in his application demonstrated a lack of seriousness and a disregard for the Commission's processes.

The Fair Work Commission has dismissed Mr Cook's application for an unfair dismissal remedy. The dismissal was based on the failure to comply with the statutory requirements of the Fair Work Act 2009, specifically the non-payment of the application fee and the lack of a completed fee waiver form. The Deputy President found that Mr Cook had been adequately warned and given opportunities to correct the deficiencies but had failed to respond, leading to the conclusion that the application should be dismissed.

Blake Cook v Bidfood Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established