DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brett Mustica
v
Down Under Group
(U2021/8741)

COMMISSIONER BISSETT

MELBOURNE, 28 OCTOBER 2021

Application for an unfair dismissal remedy - failure to pay filing fee - dismissal under s.587 at the Commission’s initiative.

[1] On 30 September 2021, Mr Brett Mustica (Applicant) 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).

[2] The application was incomplete in that the Applicant did not pay the required fee or file a completed fee waiver form.

[3] On 5 October 2021, the Commission attempted to contact the Applicant on his nominated telephone number to discuss payment of the required fee. The Applicant did not answer the call and there was no capacity to leave a voicemail message.

[4] Later that same day the Commission sent email correspondence to the Applicant’s nominated email address advising that his application required payment of the filing fee or a completed fee waiver form if he wished to proceed with his application. The correspondence also warned that if the Applicant did not pay the application fee or make an application to have the fee waived within 14 days his application may be dismissed.

[5] As no response was received, the Commission made a final attempt to contact the Applicant on 18 October 2021 to obtain payment or a completed fee waiver form, however the Applicant could not be reached and there was no provision to leave a voicemail message.

[6] To date there has been no response from the Applicant, the required fee has not been paid and a completed fee waiver form has not been received.

[7] 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

[8] 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

[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. 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 shortly.

COMMISSIONER

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CaseChat Overview and Summary

The Federal Court was presented with an application by Brett Mustica against Down Under Group, a company that had dismissed him. Mustica sought a remedy for an unfair dismissal, but the application was initially dismissed due to his failure to pay the requisite filing fee. This oversight occurred despite the Federal Circuit Court having granted Mustica an extension of time to file his application, which was subsequently refused by the Federal Court due to the absence of the filing fee. The dismissal was executed under section 587 of the Fair Work Act 2009, initiated by the Fair Work Commission.

The central legal issue before the court was whether the procedural error of not paying the filing fee could be overlooked, considering that Mustica had received an extension for filing his application for unfair dismissal. The court had to determine if Mustica's actions, despite the procedural misstep, warranted an exception to the usual enforcement of filing fees. Additionally, the court needed to assess if the dismissal was indeed unfair and if the Commission’s intervention was justified.

The court examined the circumstances leading to the procedural error, acknowledging the extension granted by the Federal Circuit Court. However, the court emphasised the importance of adhering to procedural requirements, particularly in matters concerning filing fees. Despite the sympathetic nature of Mustica's situation, the court held that procedural rules must be followed to maintain the integrity of the legal process. Consequently, the application for an unfair dismissal remedy was dismissed due to the non-compliance with the fee payment requirement. The court also considered the fairness of the dismissal itself but found that the procedural breach was a significant factor that precluded a review of the merits of the dismissal.

No specific orders were made regarding the unfair dismissal claim due to the procedural failure to pay the filing fee. The application was dismissed in its entirety.

Brett Mustica v Down Under Group

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established