Brennan Miller v JLB Fencing

[2019] FWC 8396

[2019] FWC 8396

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brennan Miller
v
JLB Fencing
(U2019/12489)

COMMISSIONER BISSETT MELBOURNE, 16 DECEMBER 2019

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

[1] On 8 November 2019, Mr Brennan Miller (Applicant) made an application to the Fair Work Commission (Commission) for remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The Form F2 unfair dismissal application form filed by the Applicant was accompanied by an incomplete Form F80-Waiver of application fee form (fee waiver form). The applicant did not pay the required fee.

[3] Section 395 of the FW Act, which deals with application fees, states that:

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 11 November 2019 the Commission attempted to telephone the Applicant on his nominated telephone number to discuss payment however the telephone number provided was incorrect and contact could not be made.

[5] Later that day the Commission sent correspondence to the Applicant’s nominated email address which advised him that his application required payment of the filing fee or a completed fee waiver form if he wished to proceed with his application. The Applicant did not respond to this correspondence.

[6] On 21 November 2019 the Commission again sent correspondence to the Applicant’s nominated email address advising him that his application remains incomplete due to non- payment or a complete fee waiver form. The correspondence also the advised the Applicant that the Commission had attempted to contact him on the mobile telephone number that he had provided however it appeared to be a wrong number. The correspondence reiterated that if the Applicant wished to proceed with his application he would need to make “payment of the filing fee or a completed waiver form as soon as possible”. A copy of the fee waiver form was attached to the correspondence.

[7] To date, the Applicant has not responded to the Commission’s correspondence. Payment of the required fee has not been made and a completed fee waiver form has not been filed with the Commission.

[8] Section 587(1) of the FW Act provides that:

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.

[9] 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.

[10] Consequently the Applicant’s 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

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