Daniel Markos v Sheldon and Hammond Pty Limited

[2024] FWC 1621

[2024] FWC 1621

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Daniel Markos
v

Sheldon And Hammond Pty Limited

(U2024/4810)

DEPUTY PRESIDENT CLANCY MELBOURNE, 31 JULY 2024

Application for an unfair dismissal remedy.

1. On 29 April 2024 Mr Daniel Markos made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Mr Markos’ unfair dismissal application is Sheldon And Hammond Pty Limited (the Respondent).

1. The application was incomplete in that Mr Markos did not pay the required fee nor lodge a complete Form F80 – Application for waiver of the application fee (Form F80).

1. On Thursday, 2 May 2024, the Commission emailed correspondence to Mr Markos’ nominated email address advising that his fee waiver form was not accessible and requested he resend it.

1. On Wednesday, 15 May 2024, the Commission advised Mr Markos that the fee waiver form was not accessible and requested he resend it as the application filing fee was still outstanding. Mr Markos indicated he would resend the fee waiver form and requested the Commission to send a reminder email.

1. Later that day, the Commission emailed correspondence to Mr Markos’ nominated email address confirming 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 warned that, if payment was not made or a waiver form was not received within 14 days, the application may be dismissed.

1. The Commission attempted to contact Mr Markos on both 23 May 2024 and 31 May 2024, to obtain payment or a completed waiver form. The calls were not answered, and a voicemail message was left advising Mr Markos that payment of the required fee was still outstanding.

1. On 13 June 2024, a final follow up call was made to Mr Markos. The call was not answered, and a voicemail message was left advising him that payment of the required fee was still outstanding.

1. To date, Mr Markos has not paid the required fee or completed a waiver form.

1. 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.

1. In relation to an application made pursuant to s.394 of the FW Act, s.395(1) provides that the application “must be accompanied by any fee prescribed by the regulations.” At the time the application was made, the regulations prescribed a fee of $83.30. The regulations also allow for an application to be made for the fee to be waived. 

1. Section 587(1) of the FW 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 prospect of success.

1. In considering all the circumstances, I am satisfied that the relevant application form has not been accompanied by the prescribed fee and the application has not been made in accordance with the FW Act. Given the absence of the fee payment, it is likely that there is no valid application before the Commission and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. Despite the attempts by the Commission to contact him, the reminders and multiple requests, Mr Markos has not responded. I am satisfied that it is appropriate in all the circumstances to dismiss the purported application. An Order[1] to this effect will be issued with this decision.  

DEPUTY PRESIDENT

[1] PR776277.

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