Bruce Thomas v Big River Pork Summary

[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.

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).

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

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.

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.

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.

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.

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.

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.

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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Bruce Thomas versus Big River Pork, the Fair Work Commission was tasked with determining whether Mr. Thomas's application for unfair dismissal was in accordance with the Fair Work Act 2009. The application was made by Mr. Thomas on 6 February 2023, but it was incomplete as it did not include the required filing fee or a completed waiver form. The Commission subsequently communicated with Mr. Thomas through email and SMS to request the missing elements. Despite multiple reminders and attempts to contact him, Mr. Thomas failed to provide the necessary fee or waiver form, leading the Commission to consider dismissing the application under section 587 of the FW Act.

The central legal issue before the Commission was whether Mr. Thomas's application for unfair dismissal complied with the procedural requirements stipulated in the Fair Work Act 2009. Specifically, the court needed to determine if the application was dismissed validly due to its non-compliance with the prescribed fee and waiver form requirements. The court examined the statutory provisions, including sections 395 and 587 of the FW Act, which mandate the payment of prescribed fees and outline the conditions under which an application may be dismissed. The Commission needed to ascertain whether the application's non-compliance with these provisions justified its dismissal.

In making its decision, the Commission considered the statutory framework and the procedural steps taken by the Commission to notify Mr. Thomas of the deficiencies in his application. Given that Mr. Thomas did not respond to the Commission's multiple attempts to obtain the required fee or waiver form, the Commission found that the application was not made in accordance with the FW Act as required by section 395. Consequently, the Commission ruled that the application should be dismissed pursuant to section 587(1)(a) of the FW Act. The Commission's decision was grounded in the statutory mandate and the procedural fairness afforded to Mr. Thomas, who had ample opportunity to rectify the deficiencies in his application.

Bruce Thomas v Big River Pork

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established