David Chambers v SmartStream Technology

[2021] FWC 4649

[2021] FWC 4649

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Chambers
v
SmartStream Technology
(U2021/5683)

COMMISSIONER BISSETT MELBOURNE, 3 AUGUST 2021

Application for relief from unfair dismissal – incomplete application – dismissal under s.587 at the Commission’s initiative.

[1] On 29 June 2021 Mr David Chambers 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 Chambers did not pay the required fee or file a completed waiver form. There were other irregularities on the Form F2 application.

[3] On 30 June 2021 the Commission attempted to contact Mr Chambers on his nominated telephone number to discuss the issues with his application, however Mr Chambers did not answer the call. A voicemail message was left requesting Mr Chambers to contact the Commission to discuss the issues with his application.

[4] Later that day, the Commission emailed correspondence to Mr Chambers’ nominated email address advising that if he wished to proceed with the application, he must pay the required filing fee or provide a completed waiver form. The correspondence also advised that Mr Chambers is required to supply the dates of his employment in writing and request in writing that the typographical error in his first name is rectified on the Commission’s records. The correspondence also warned that if the required information was not received within 14 days, the matter may be dismissed.

[5] On 1 July 2021 Mr Chambers contacted the Commission and verbally provided the dates of his employment. Mr Chambers further stated that he would confirm this information in writing.

[6] Later that day, the Commission emailed Mr Chambers a blank copy of the Form F80 – Fee Waiver for his completion.

[7] On 13 July 2021 the Commission received email correspondence from Mr Chambers enquiring how to pay the required filing fee as he was content to do so. The Commission responded to his enquiry by email advising Mr Chambers that he could contact the Commission’s helpline to process the payment over the phone or he could submit a Form F80 – Fee Waiver. The email advised Mr Chambers that if he did not pay the required fee or seek a waiver by Wednesday, 14 July 2021 his application may be dismissed.

[8] On the same day a further attempt to contact Mr Chambers by telephone was made by the Commission. The call was not answered. A detailed voicemail message was left requesting Mr Chambers to contact the Commission urgently to discuss the outstanding issues of his application. The voicemail again stated that if he failed to respond to the requirements of the Commission by Wednesday, 14 July 2021 his application may be dismissed.

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

[10] 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.

[11] 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 prospect of success.

[12] In these circumstances, I have determined that the application was not made in accordance with the FW Act.

[13] As such, the application is dismissed under s.587(1)(a) of the FW Act. An order 1 to this effect will be issued shortly

COMMISSIONER

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