David Smeaton v Joe Cahill (Australia) Pty Ltd T/A Cahill Transport

[2017] FWC 1606

[2017] FWC 1606

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

David Smeaton
v
Joe Cahill (Australia) Pty Ltd T/A Cahill Transport
(U2017/1628)

COMMISSIONER HAMPTON ADELAIDE, 23 MARCH 2017

Application for an unfair dismissal remedy – non-payment.

[1] On 15 February 2017, Mr Edward Lawrie of the Transport Workers' Union of Australia lodged an application on behalf of Mr David Smeaton for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Section 395 of the Act, which deals with application fees, provides:

“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.”

[3] No fee accompanied the application and Mr Lawrie advised the Commission at that time that Mr Smeaton would pay the fee. Mr Smeaton did not subsequently pay the required fee.

[4] On 16 February 2017, Mr Smeaton was advised by telephone and letter that his application required payment of the filing fee or a completed waiver form if he wished to proceed with the matter. He was also advised that in the absence of appropriate action on his behalf, the s.394 application may be dismissed. Mr Smeaton advised that he intended to complete the waiver form.

[5] On 3 March 2017, the Commission again contacted Mr Smeaton by telephone in relation to the correspondence dated on 16 February 2017. Mr Smeaton advised he would post the completed waiver form.

[6] On 10 March 2017, the Commission once again emailed Mr Smeaton and also Mr Lawrie requesting the completed waiver form.

[7] On 14 March 2017, the Commission contacted Mr Smeaton by telephone. Mr Smeaton advised he had posted the waiver form on either 8 or 9 March 2017. Mr Smeaton was informed the waiver form had not been received by the Commission. He was requested to immediately email the form to the Commission. An email was sent to Mr Smeaton and Mr Lawrie confirming the request for the completed waiver form.

[8] No response was received from Mr Smeaton or Mr Lawrie and payment of the required fee has not been made.

[9] Section 587(1) of the 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 prospects of success.”

[10] Having regard to the circumstances of this matter, I am satisfied that as the application was not accompanied by the prescribed fee, the application was not made in accordance with the Act. I am also satisfied that in these circumstances, it is appropriate to dismiss the s.394 application. Accordingly, the application is dismissed pursuant to s.587(1)(a) of the Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

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