Darren Brown v JD Sports

[2024] FWC 70

[2024] FWC 70

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Darren Brown
v

JD Sports

(U2023/10842)

DEPUTY PRESIDENT CLANCY MELBOURNE, 11 JANUARY 2024

Application for an unfair dismissal remedy – dismissal under s.587 at the Commission’s initiative.

1. On 6 November 2023, Mr Darren Brown (the Applicant), 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).

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

1. On 10 November 2023, the Commission attempted to contact Mr Brown on his nominated telephone number. However, the call was not answered and a voicemail message left requesting that Mr Brown contact the Commission as the From F80 he had submitted was incomplete.

1. On 15 and 20 November 2023, the Commission emailed correspondence to Mr Brown’s nominated email address reminding him that his application required payment of the application fee or a completed Form F80 if he wished to proceed with his application. The correspondence, on both occasions, also warned Mr Brown that if payment was not made, or a Form F80 not received within 7 calendar days, his application may be dismissed.

1. A final attempt to contact Mr Brown on his nominated telephone number was made by the Commission on 24 November 2023. The call was not answered. A voicemail message was left advising Mr Brown that if payment was not made or a Form F80 received by 26 November 2023, his application may be dismissed, and a decision published on the Commission website. To date there has been no response from Mr Brown. the required fee has not been paid and a completed Form F80 has not been received.

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 was not accompanied by the prescribed fee and the application has not been made in accordance with the Act. Given the absence of the fee payment, it is likely that there is no valid application before the Commission[1] 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 Brown has not responded. In these circumstances, I am satisfied that it is appropriate in all the circumstances to dismiss the purported application. An Order[2] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].

[2] PR770122.

Printed by authority of the Commonwealth Government Printer

<PR770121>