Brewer v Inverell Returned Services Memorial Club Ltd Summary

[2016] FWC 1878

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kurtis Brewer

Inverell Returned Services Memorial Club Ltd T/A Inverell RSM Club

(U2015/16487)

DEPUTY PRESIDENT GOOLEY	MELBOURNE, 24 MARCH 2016
Application for relief from unfair dismissal.

[1] On 2 December 2015, Mr Kurtis Brewer made an application for remedy for unfair

dismissal pursuant to s.394 of the Fair Work Act 2009.

[2] The application form filed by Mr Brewer was incomplete and the filing fee or

completed waiver has not been received.

[3] On 2 December 2015, the Commission requested Mr Brewer, by email, to provide

further details as soon as possible.

[4] Mr Brewer did not contact the Commission or provide the necessary details as

requested.

[5] On 6 January 2016, the Commission attempted to contact Mr Brewer without success.
[6] On 29 February 2016, the Commission contacted Mr Brewer about his application. Mr

Brewer stated his computer had been repossessed following his dismissal and that he still

wished to pursue his claim and requested the documentation be resent to him. Correspondence

was sent to Mr Brewer on the same day with the accompanying incomplete application and

blank waiver form. The correspondence indicated Mr Brewer had a further seven days in

which to lodge the completed documentation.

[7] On 14 March 2016, Mr Brewer was contacted once again about his application. An

email was sent on the same day giving him an additional seven days to file the required

documentation and make payment of his application.

[8] On 21 March 2016, Mr Brewer provided an amended application however a

completed waiver application did not accompany the amended application. An email was sent

to Mr Brewer requesting he complete the waiver application by 21 March 2016. In the

absence of any advice from him he ran the risk of his application being dismissed.
[2016] FWC 1878

[9] Mr Brewer did not contact the Commission, make payment of his application and did

not file a waiver form as requested.

[10] Section 395 of the Act, which deals with application fees, provides:
“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.”

[11] Having regard to the above, Mr Brewer has failed to pay the required fee.
[12] Section 587(1) of the 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 prospects of success.”

[13] Having regard to the circumstances of this matter, I am satisfied that the application

was not accompanied by the lodgement fee as prescribed by the Act. In these circumstances,

I have determined that the application was not made in accordance with the Act.

[14] Consequently, the application is dismissed under s.587(1)(a) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Kurtis Brewer brought an application for relief from unfair dismissal against the Inverell Returned Services Memorial Club Ltd under the Fair Work Act 2009. The matter was heard by Deputy President Gooley of the Fair Work Commission. The application was brought following Mr Brewer's dismissal from his employment with the club. The key issue before the court was whether the application complied with the procedural requirements of the Fair Work Act 2009, specifically whether the application fee was paid or a waiver was submitted. Mr Brewer's initial application was incomplete and did not include the necessary fee or waiver. Despite multiple requests and extensions, Mr Brewer did not provide the required documentation. Under section 395 of the Fair Work Act 2009, applications to the Fair Work Commission must be accompanied by the prescribed fee, with provisions for fee waivers. Section 587 of the Act allows the Commission to dismiss an application if it is not made in accordance with the Act, among other grounds. Given that Mr Brewer's application did not comply with the requirement to pay the fee or submit a waiver, Deputy President Gooley dismissed the application under section 587(1)(a) of the Act.

The court found that Mr Brewer's failure to comply with the statutory fee requirements meant his application was not made in accordance with the Act. Despite Mr Brewer's assertion that he wished to pursue his claim, his inability or unwillingness to meet the basic procedural requirements resulted in the dismissal of his application. The court considered Mr Brewer's circumstances, including the repossession of his computer, but ultimately found that these did not excuse his failure to comply with the statutory requirements. The Deputy President was satisfied that the application was not made in accordance with the Act and therefore dismissed the application.

Brewer v Inverell Returned Services Memorial Club Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established