Bruce Thomas v Big River Pork

[2023] FWC 489

[2023] FWC 489

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Bruce Thomas
v

Big River Pork

(U2023/904)

COMMISSIONER BISSETT MELBOURNE, 28 FEBRUARY 2023

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

1. On 6 February 2023 Mr Bruce Thomas 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).

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

1. On 7 February 2023 the Commission emailed correspondence to Mr Thomas’s nominated email address 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 7 calendar days the application may be dismissed. The next day an SMS notification was also sent to Mr Thomas’s nominated telephone number advising of the requirement to action the payment request email from the Fair Work Commission.

1. On 16 February 2023 the Commission emailed correspondence to Mr Thomas’s nominated email address reminding him 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, the application may be dismissed. 

1. A final attempt to contact Mr Thomas on his nominated telephone number was made by the Commission on 21 February 2023 to obtain payment or a completed waiver form. The call was not answered. A voicemail message was left advising Mr Thomas that payment of the required fee was still outstanding.

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

1. 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.

1. 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

(c) the application has no reasonable prospect of success.

1. 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, I order that the application is dismissed pursuant to s.587(1)(a) of the FW Act.

COMMISSIONER

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