Corey Olive v Kitchen Image Australia Pty. Limited

[2025] FWC 9

[2025] FWC 9

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Corey Olive
v

Kitchen Image Australia Pty. Limited

(U2024/9552)

DEPUTY PRESIDENT BEAUMONT PERTH, 2 JANUARY 2025

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

1. On 16 August 2024, Mr Corey Olive made an unfair dismissal application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act).

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

1. 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.”

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

1. Commission staff contacted Mr Olive on the following dates:

·   26 August 2024 by telephone and email; and

·   11 September 2024 by email.

1. It was evident that the contact details provided by Mr Olive in respect of his telephone number were incorrect.

1. It therefore followed that Mr Olive was advised by email that he must pay the filing fee or apply for a waiver if he wished to proceed with the application. Mr Olive was also notified on 11 September 2024 that his application could be dismissed if the filing fee was not paid.

1. On 18 November 2024, Chambers further advised Mr Olive that the Commission was contemplating the dismissal of his application, and he was directed to respond by 5:00pm on 22 November 2024.

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

1. 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.”

1. Mr Olive’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 Olive’s application.

1. Mr Olive 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.

1. In the circumstances, I am satisfied that Mr Olive’s application should be dismissed.

1. I have separately made an order dismissing Mr Olive’s application (PR782944).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR782943>