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

[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

[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

Printed by authority of the Commonwealth Government Printer

In the matter of Christopher Moore versus Ceduna Bulk Hauliers & Earthmoving Pty Ltd, the Federal Court was called upon to determine whether relief from unfair dismissal should be granted. The dispute arose when the respondent, Ceduna Bulk Hauliers & Earthmoving Pty Ltd, dismissed the applicant, Christopher Moore, under section 587 of the Fair Work Act 2009. The dismissal was initiated by the Fair Work Commission (FWC), which found the dismissal to be harsh, unjust, or unreasonable. Moore subsequently applied for relief from the dismissal under section 534 of the same Act, but the application was deemed incomplete by the FWC. The court was tasked with deciding whether the FWC’s determination that the application was incomplete was lawful and whether relief from dismissal should be granted.

The central legal issues before the court were whether the FWC's decision that Moore's application was incomplete was within its jurisdiction and whether the FWC had exercised its discretion appropriately in declining to grant relief from the dismissal. The court needed to examine whether the FWC's interpretation of section 534 was correct and whether there were any procedural or substantive errors in the FWC's decision. Additionally, the court had to consider whether there were any grounds for the FWC to grant relief from the dismissal despite the incomplete application.

The court held that the FWC's determination that Moore's application was incomplete was lawful and appropriately exercised its discretion. It found that the FWC correctly interpreted section 534, which requires an application for relief from dismissal to be made in the specified form and manner. The court held that the FWC had exercised its discretion correctly in declining to grant relief from dismissal, as the application was not complete. The court concluded that the FWC's decision was not affected by any procedural or substantive errors, and the dismissal remained valid. The court found that there were no grounds to grant relief from the dismissal despite the incomplete application, as the statutory requirements had not been met.

The court dismissed Moore's appeal and affirmed the FWC's decision. The dismissal by Ceduna Bulk Hauliers & Earthmoving Pty Ltd of Christopher Moore remained valid, and no relief from the dismissal was granted.

Christopher Moore v Ceduna Bulk Hauliers & Earthmoving Pty Ltd

DECISION

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