Darren McDonald v East Lismore Automotive Pty Ltd

[2022] FWC 90

[2022] FWC 90

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Darren McDonald

v

East Lismore Automotive Pty Ltd

(U2021/12305)

cOMMISSIONER bISSETT melbourne, 1 february 2022

Application for relief from unfair dismissal – failure to pay filing fee – dismissal under s.587 at the Commission’s initiative.

1. On 27 December 2021, Mr Darren McDonald (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 the Applicant did not pay the required fee or file a completed fee waiver form.

1. On 31 December 2021, the Commission attempted to contact the Applicant on his nominated telephone number to discuss payment of the required fee however, the Applicant did not answer the call. A voicemail message was left requesting he contact the Commission to discuss payment. The Applicant failed to return the Commission’s call.

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

1. On 12 January 2022 the Commission attempted to contact the Applicant to obtain payment or a completed fee waiver form. The Applicant did not answer the call. A voicemail message was left advising the Applicant that payment of the required fee was still outstanding.

1. As payment had not been received the Commission sent email correspondence to the Applicant’s Representative, 1800ADVOCATES Pty Ltd, and sent a copy to the Applicant, advising that to date there have been 2 unsuccessful attempts made by the Commission to contact the Applicant to discuss payment. The correspondence also advised that:

…the file has now been allocated to Commissioner Bissett, National Practice Leader for unfair dismissal matters and that the Commissioner is considering dismissing the application. However, the Commissioner has decided to extend the time until close of business Monday, 31 January 2022 for the Applicant to make payment or file a waiver form. If the Applicant fails to make payment or file a waiver form by this date, the application will be dismissed without further correspondence…

1. To date, the required fee has not been paid and a completed fee waiver form has not been received.

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. 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 prospects of success.

1. 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

[1] PR737602

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