Daniel Markos v Sheldon and Hammond Pty Limited Summary

[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.

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).

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).

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

Printed by authority of the Commonwealth Government Printer

The Fair Work Commission was presented with an application from Daniel Markos against Sheldon and Hammond Pty Limited, seeking a remedy for unfair dismissal under section 394 of the Fair Work Act 2009. Markos filed his application on 29 April 2024 but failed to include the requisite application fee or a completed fee waiver form, as mandated by section 395 of the Act. Despite multiple correspondences and warnings from the Commission, Markos did not provide the necessary fee or form within the stipulated time frame, leading to the application's dismissal.

The primary legal issue the Commission needed to address was whether Markos' application was valid under the Fair Work Act. Section 395 of the Act requires that any application must be accompanied by the prescribed fee or a completed waiver form, and section 587(1)(a) allows the Commission to dismiss an application that is not made in accordance with the Act. Given that Markos did not comply with the procedural requirements, the Commission had to determine whether the application could be considered valid and thus merit further consideration.

In reaching its decision, the Commission noted that Markos had been repeatedly advised of the necessity to either pay the application fee or submit a completed fee waiver form. Despite these communications, Markos did not respond to any of the Commission's attempts to contact him or provide the required documentation. The Commission concluded that the absence of the fee payment rendered the application non-compliant and likely invalid. Consequently, the Commission dismissed the application under section 587(1)(a) of the Act.

An Order to dismiss the application was issued by the Fair Work Commission, concluding that Markos' application for unfair dismissal did not meet the procedural requirements of the Act and, therefore, could not proceed.

Daniel Markos v Sheldon and Hammond Pty Limited

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