Chad Pallett v Redpath Pty Ltd

[2019] FWC 7725

[2019] FWC 7725

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Chad Pallett
v
Redpath Pty Ltd
(U2019/11217)

DEPUTY PRESIDENT MANSINI MELBOURNE, 15 NOVEMBER 2019

Application for an unfair dismissal remedy.

[1] Mr Pallett (Applicant) has applied for an unfair dismissal remedy pursuant to s.394 of

the Fair Work Act 2009 (Cth) (Act).

[2] I have determined that the application was not made in accordance with the Act. Accordingly, the application is dismissed. The reasons for this decision follow.

Context

[3] The application was filed on 5 October 2019. It did not include payment of the application fee as required by s.395 of the Act, nor did it include an application for waiver of the fee.

[4] The matter did not proceed to conciliation conference as the application was incomplete.

[5] The Commission attempted to contact the Applicant regarding the requirement to pay or seek waiver of the filing fee on six separate occasions, as follows:

a) at 12:06pm on 8 October 2019, by telephone to the Applicant’s nominated mobile telephone number. The Applicant was advised that his waiver form was incomplete and that the Commission would send a copy of the waiver form to complete;

b) at 12:22pm on 8 October 2019, by email to the Applicant’s nominated email address. That correspondence advised the Applicant that if he wishes to proceed with his application, he would need to provide payment of the fee or complete the fee waiver form. A blank Form F80 - Waiver of application fee (Form F80) was attached;

c) at 1:10pm on 17 October 2019, by telephone to the Applicant’s nominated mobile telephone number. The Applicant advised that he would email the completed fee waiver form by 18 October 2019;

d) at 12:50pm on 23 October 2019, by telephone to the Applicant’s nominated mobile telephone number. The Applicant advised that he was busy and that he would ring back. The Applicant then terminated the call;

e) at 5:03pm on 23 October 2019, by telephone to the Applicant’s nominated mobile telephone number. The Applicant requested that a fee waiver form be provided again, by email;

f) at 6:21pm on 24 October 2019, by email Applicant’s nominated email address. That correspondence advised that if a completed fee waiver form was not received by the end of the day, the file may be closed because the application remains incomplete. The Commission again provided a blank Form F80 to complete.

[6] As at the date of this decision, the Applicant has not paid the required fee and has not filed a completed application for waiver of the fee.

Statutory context

[7] An unfair dismissal application made under s.394 may be dismissed if the Commission is satisfied that the application is not made in accordance with the Act (s.587(1)(a)).

[8] To be made in accordance with the Act, the application must be accompanied by any fee prescribed by the Fair Work Regulations 2009 (Cth) (Regulations) (s.395). The Regulations in turn provide a method for calculating the application fee or, if the Commission is satisfied that the person will suffer serious hardship if required to pay the fee, no fee is payable. The Commission’s Rules prescribe the content of the F80 which, if completed, would include information relevant to whether a waiver is appropriate.

[9] The power to dismiss an application under s.587(1)(a) is discretionary and may be exercised on application or on the Commission’s own initiative (s.587(3)).

[10] Procedurally, the Commission is not required to hold a hearing except as provided by the Act (s.593). In the context of an unfair dismissal application, the Commission must not hold a hearing unless it considers it appropriate to do so, taking into account the views of the parties to the matter and whether a hearing would be the most effective and efficient way to resolve the matter (s.399).

Consideration and conclusion

[11] The Applicant has not filed the application fee or waiver form despite numerous attempts made by the Commission to contact him in an effort to rectify these issues. The Commission has afforded the Applicant substantial opportunity to pay the fee or apply for waiver and he has been placed on notice of the likely consequences of his failures to do so.

[12] In these circumstances, the Commission is not able to reach the requisite satisfaction that a waiver of the fee should be granted.

[13] Accordingly, I am satisfied that the application was not made in accordance with the Act and the application is dismissed pursuant to s.587(1)(a). An order (PR714186) giving effect to this decision will be issued separately.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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