David Parke v BHP WAIO Pty Ltd

[2022] FWC 168

[2022] FWC 168

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

David Parke
v

BHP WAIO Pty Ltd

(U2022/209)

COMMISSIONER BISSETT MELBOURNE, 27 JANUARY 2022

Application for an unfair dismissal remedy - failure to pay filing fee – dismissal under s.587 at the Commission’s initiative.

1. On 2 January 2022, Mr David Parke (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 made by the Applicant was incomplete in that it did not include payment of the required fee or a completed waiver form in accordance with s.395 of the FW Act.

1. On 5 January 2022, the Commission contacted the Applicant on his nominated telephone number to discuss payment of the required fee and to seek clarification regarding the information provided on the application. The Applicant clarified the information provided on the application and advised the Commission that he may not proceed with the application.

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 waiver form if he wished to proceed with the application. That correspondence also warned that if payment is not made or a waiver form is not received within 14 days, the application may be dismissed. The Commission also attempted to send the correspondence to the Applicant’s nominated representative, Mr Craig Dunne of the Australian Workers Union, but the email was undeliverable.

1. On 20 January 2022, the Commission made a final attempt to contact the Applicant to obtain payment or a completed 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 and that if the Commission did not receive payment or a completed waiver form by close of business 21 January 2022, the matter would be referred to a Member and was at risk of being dismissed. The voicemail message was converted to text message and delivered to the Applicant through talk-to-text service.

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] PR737775

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