Christopher Moore v Ceduna Bulk Hauliers & Earthmoving Pty Ltd

[2021] FWC 6343

[2021] FWC 6343

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Moore
v
Ceduna Bulk Hauliers & Earthmoving Pty Ltd
(U2021/9247)

COMMISSIONER BISSETT MELBOURNE, 16 NOVEMBER 2021

Application for relief from unfair dismissal – incomplete application – dismissal under s.587 at the Commission’s initiative.

[1] On 14 October 2021, Mr Christopher Moore 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).

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

[3] On 20 October 2021, the Commission attempted to contact Mr Moore on his nominated telephone number to discuss payment of the required fee, however, Mr Moore did not answer the call. A voicemail message was left requesting Mr Moore to contact the Commission.

[4] Later that day, the Commission emailed correspondence to Mr Moore’s nominated email address advising that their application required payment of the filing fee or a completed waiver form if they wished to proceed with the application. That correspondence also warned that if payment is not made or a waiver form is not received within 14 days, the application may be dismissed.

[5] On 22 October 2021, Mr Moore contacted the Commission to advise he would pay the filing fee by 24 October 2021. Mr Moore did not do so.

[6] A final attempt to contact Mr Moore was made by the Commission on 4 November 2021 to obtain payment or a completed waiver form. The call was not answered, and a voicemail message was left advising Mr Moore that payment of the required fee was still outstanding.

[7] On 4 November 2021 Mr Moore contacted the Commission to advise he will pay the filing fee on 8 November 2021. The Commission advised Mr Moore that if he did not either pay the fee or withdraw the application on 08 November 2021, the matter will be referred to a Member, and may be dismissed. Mr Moore understood and indicated an intention to pay the fee on the following Monday.

[8] On 9 November 2021, the Commission again contacted Mr Moore on his nominated telephone number to discuss payment of the outstanding filing fee. Mr Moore advised he had insufficient credit on his mobile and was unable to contact the Commission. Mr Moore advised that he was currently at the bank depositing funds into his bank account for the filing fee. Mr Moore advised he will contact the Commission later that day to process the filing fee. The Commission advised Mr Moore that if we do not hear from him to either pay the fee or withdraw the application by end of business 9 November 2021, the matter will be referred to a Member, and may be dismissed.

[9] To date Mr Moore has not paid the required fee or completed a waiver form.

[10] 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.

[11] 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 prospect of success.

[12] 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 to this effect will be issued shortly.

COMMISSIONER

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