Damien Kane v SMW Drilling Services

[2020] FWC 4752

[2020] FWC 4752

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Damien Kane
v
SMW Drilling Services
(U2020/10532)

COMMISSIONER BISSETT MELBOURNE, 4 SEPTEMBER 2020

Application for an unfair dismissal remedy.

[1] On 4 August 2020 Mr Damien Kane 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 Kane did not pay the required fee or file a completed waiver form.

[3] On 4 August 2020 the Commission attempted to contact Mr Kane on his nominated telephone number to discuss payment of the required fee however, Mr Kane did not answer the call. A voicemail message was left requesting a return call to make payment.

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

[5] On 7 August 2020 Mr Kane contacted the Commission and confirmed that he received the waiver form. The Commission again advised Mr Kane that he had 14 days from the date of the latter to send a waiver form or pay the fee or his application may be dismissed.

[6] Final attempts to contact Mr Kane were made by the Commission on 17, 18 and 20 August 2020 to obtain payment or a completed waiver form. The calls were not answered and voicemail messages were left advising Mr Kane that payment of the required fee was still outstanding.

[7] To date there has been no response from Mr Kane, the required fee has not been paid and a completed waiver form has not been received.

[8] 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.

[9] 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 prospects of success.

[10] 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 1 to this effect will be issued shortly.

COMMISSIONER

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