Brock Heathcote v Caelli Constructions Pty Ltd

[2020] FWC 24

[2020] FWC 24

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brock Heathcote
v
Caelli Constructions Pty Ltd
(U2019/13193)

COMMISSIONER BISSETT MELBOURNE, 6 JANUARY 2020

Application for an unfair dismissal remedy.

[1] On 26 November 2019 Mr Brock Heathcote (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 application form filed by the Applicant in the Commission was incomplete in that did not include payment of the required fee or a completed fee waiver form in accordance with s.395 of the FW Act.

[3] Section 395 of the FW 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.

[4] On 27 November 2019 the Commission attempted to contact the Applicant on his nominated mobile telephone number. A voicemail message was left advising that his application required payment of the filing fee and requesting he return the Commission’s call.

[5] Also on that date the Commission emailed correspondence to the Applicant’s nominated email address advising that the application required payment of the filing fee or a completed waiver form if he wished to proceed with his application. The Applicant was advised that if he did not pay the fee or file a waiver form within 14 days his unfair dismissal application may be dismissed.

[6] On 10 December 2019 the Commission attempted to contact the Applicant on his nominated mobile telephone number in relation to the correspondence dated on 27 November 2019. A voicemail message was left advising:

•  that the unfair dismissal application cannot proceed without payment;

•  that the Applicant could return the Commission’s call to discontinue the application if he did not wish to proceed or pay the fee or lodge a fee waiver; and

•  that if no payment or waiver form in received, his unfair dismissal application may be dismissed.

[7] On 18 December 2019 the Commission attempted to contact the Applicant on his nominated mobile telephone number. The call went straight to voicemail. A voicemail message was left advising that the Commission has not heard back from him regarding the payment or waiver form and that the application would be referred to a Member of the Commission to make a decision. The Applicant was advised to return the Commission’s call if he wished to discontinue the application or pay the fee.

[8] To date, no response has been received from the Applicant, payment of the required fee has not been made and no completed fee waiver form has been filed.

[9] 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 prospects of success.

[10] 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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