Chad Barrett v Turnkey Labour Hire Pty Ltd

[2024] FWC 3329

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Chad Barrett
v

Turnkey Labour Hire Pty Ltd

(U2024/11269)

DEPUTY PRESIDENT EASTON

SYDNEY, 29 NOVEMBER 2024

Application for an unfair dismissal remedy – unpaid application fee – application is not made in accordance with this Act – application dismissed – s.587(1)(a).

On 20 September 2024 Mr Chad Barrett made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

For the reasons that follow I am satisfied that Mr Barrett’s application has not been made in accordance with the Act and that it is appropriate to dismiss the application.

Section 395 of the Act is in the following terms:

“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.”

Mr Barrett’s application was incomplete because he did not pay the required fee or file a completed request to waive the fee.

Commission staff contacted Mr Barrett on the following dates:

25 September 2024 by telephone , SMS and letter; and
8 October 2024 by telephone.

Mr Barrett was advised that he must pay the filing fee or apply for a waiver if he wished to proceed with the application. Mr Barrett was also warned that the application could be dismissed if the filing fee was not paid by 9 October 2024.

To date there has been no response from Mr Barrett, no fee paid and no waiver request received.

Section 587 of the Act includes the following provisions:

“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.

…
(3) The FWC may dismiss an application:

(a) on its own initiative; or
(b) on application.”

Mr Barrett’s application was not made in accordance with the Act (per s.587(1)(a)) because the prescribed fee (per s.395) has not been paid or waived. Section 587 confers a discretion on the Commission to dismiss Mr Barrett’s application.

Mr Barrett has been given ample opportunity to rectify the deficiency in the application (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [15]-[16] and the cases cited therein). The Commission’s inquiries and warnings have largely been ignored.

In the circumstances I am satisfied that Mr Barrett’s application should be dismissed.

I have separately made an order dismissing Mr Barrett’s application (PR781876).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Chad Barrett lodged an unfair dismissal claim with the Fair Work Commission against Turnkey Labour Hire Pty Ltd. The application was filed under section 394 of the Fair Work Act 2009, but it was incomplete as Barrett failed to pay the required application fee or file a request to waive the fee as mandated by section 395 of the Act. The Commission was required to determine whether the application could be dismissed due to non-compliance with the prescribed fee requirements.

The legal issue before the Commission was whether the application could be dismissed under section 587 of the Act for not being made in accordance with the legislation. Section 587(1)(a) allows the Commission to dismiss an application if it is not made in accordance with the Act, which in this case meant that the prescribed fee had not been paid or waived as required by section 395. The Commission had previously contacted Barrett to inform him of the deficiency and warned that failure to rectify it would result in dismissal of the application. The Deputy President concluded that Barrett's application was not made in accordance with the Act because the fee had not been paid or waived, and that the application should be dismissed.

The Deputy President considered the case of Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302, where similar circumstances were addressed, and noted that Barrett had been given ample opportunity to rectify the deficiency in his application. Given Barrett's failure to respond to the Commission's inquiries and warnings, the Deputy President was satisfied that the application should be dismissed. The Deputy President exercised the discretion under section 587 to dismiss the application and made an order to that effect.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established