Craig Harris v Worx Equipment Pty Ltd

[2024] FWC 1431

[2024] FWC 1431

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Craig Harris
v

Worx Equipment Pty Ltd

(U2024/4384)

DEPUTY PRESIDENT EASTON SYDNEY, 4 JUNE 2024

Application for an unfair dismissal remedy

1. On 16 April 2024 Mr Craig Harris made an application under s.394 of the Fair Work Act 2009 (Cth), claiming to have been unfairly dismissed. The application was incomplete insofar as Mr Harris did not pay the required application fee or apply for a waiver of the fee.

1. On 22 April 2024 Commission staff emailed correspondence to Mr Harris’ nominated email address advising him that if he wished to proceed with his application he was required to pay the filing fee or apply for a waiver of the fee. Mr Harris was warned that if payment was not made, or a waiver form was not received within 7 calendar days, then his application may be dismissed. An SMS notification was also sent to Mr Harris’s nominated telephone number advising that the Fair Work Commission had sent him an important email.

1. A further reminder was sent by email on 26 April 2024. That reminder email also warned that if payment was not made or a waiver form was not received, the application may be dismissed.

1. On 30 April 2024 Commission staff made tried to contact Mr Harris by telephone regarding payment. A voicemail message was left asking for payment by close of business 1 May 2024. Contact details were provided.

1. Commission staff made one final attempt to contact Mr Harris by telephone on 7 May 2024. Mr Harris did not answer the call. A voicemail message was left advising Mr Harris that he needed to pay the required fee.

1. To date there has been no response from Mr Harris, the required fee has not been paid and a completed waiver form has not been received.

1. Section 395 of the 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.

1. Section 587 of the Act provides as follows:

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.

…

(2)The FWC may dismiss an application:

(a)on its own initiative; or

(b) on application.

1. I am satisfied that the application was not made in accordance with the Act because the application was not accompanied by the prescribed fee. As such, Mr Harris’ application can be dismissed pursuant to s.587(1)(a) of the Act.

1. Section 587(3) allows the Commission to dismiss an application on its own initiative, subject to the Commission acting judiciously and affording applicants procedural fairness.

1. Mr Harris has been on notice of the requirement to pay the application fee or apply for a waiver for almost a month. Mr Harris has also been on notice of the likely consequences for his application if he did not pay the application fee or apply for a waiver. Mr Harris has not responded to the Commission’s inquiries and it is quite possible that he has abandoned his application.

1. In the circumstances it is appropriate to dismiss Mr Harris’ application.

1. I have separately made an order to this effect (PR775539).

DEPUTY PRESIDENT

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