Brandon Ely v Curtis Contracts Summary

[2022] FWC 828

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Brandon Ely
v

Curtis Contracts

(U2022/3440)

COMMISSIONER BISSETT

MELBOURNE, 11 APRIL 2022

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

On 22 March 2022 Mr Brandon Ely 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).

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

On 22 March 2022 the Commission attempted to contact Mr Ely on his nominated telephone number to discuss payment of the required fee. However, Mr Ely did not answer the call. A voicemail message was left requesting he contact the Commission to discuss payment.

Later that day, the Commission emailed correspondence to Mr 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 Ely’s nominated telephone number, advising that there was a problem with his application and requesting he contact the Commission.

A final attempt to contact Mr Ely was made by the Commission on 4 April 2022 to obtain payment or a completed waiver form. The call was not answered and a voicemail message was left advising Mr Ely that payment of the required fee was still outstanding and requesting he contact the Commission urgently.

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

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.

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.

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] PR740248.

Printed by authority of the Commonwealth Government Printer

The Fair Work Commission was asked to consider an application for an unfair dismissal remedy by Brandon Ely against Curtis Contracts. The application was dismissed on the basis that it was incomplete, as Mr Ely failed to pay the required fee or submit a completed waiver form. Despite multiple attempts by the Commission to contact Mr Ely and inform him of the deficiencies in his application, he did not respond, leading to the dismissal of his application under section 587(1)(a) of the Fair Work Act 2009.

The key legal issue the Commission had to decide was whether Mr Ely's application was validly made under the Fair Work Act. Specifically, the Commission had to consider whether the failure to pay the required fee or submit a completed waiver form rendered the application non-compliant with the Act. Under section 395 of the Act, an application to the Commission must be accompanied by the prescribed fee, and section 587 allows the Commission to dismiss an application if it is not made in accordance with the Act. The Commission concluded that Mr Ely's application did not comply with these statutory requirements.

In reaching its decision, the Commission noted that it had made several attempts to contact Mr Ely to inform him of the deficiencies in his application and to give him the opportunity to rectify them. Despite these efforts, Mr Ely did not respond, and as a result, his application was dismissed. The Commission was satisfied that the application did not comply with the Act because it was not accompanied by the required fee, and thus, the application was dismissed under section 587(1)(a) of the Act. An order will be issued in accordance with this decision.

Brandon Ely v Curtis Contracts

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