David Watt v ATF height safety solutions T/A MPL investments (wa) pty ltd

[2018] FWC 238

[2018] FWC 238

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Watt
v
ATF height safety solutions T/A MPL investments (wa) pty ltd
(U2017/12027)

COMMISSIONER BISSETT MELBOURNE, 12 JANUARY 2018

Application for an unfair dismissal remedy.

[1] On 12 November 2017, Mr David Watt made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth) (the Act).

[2] Mr Watt did not pay the required fee.

[3] On 13 November 2017, the Fair Work Commission (the Commission) contacted Mr Watt via telephone to request payment details and was advised that he could not make payment until Thursday 16 November 2017. On the same day, correspondence was sent to Mr Watt advising that if he wished to proceed with his application, payment of the filing fee should be made as soon as possible. Mr Watt was advised in the absence of any advice from him within 14 days, his application may be dismissed.

[4] On 17 and 21 November 2017, the Commission attempted to contact Mr Watt via telephone, however these were unsuccessful. On both occasions, voicemail messages were left requesting that Mr Watt return the Commission’s call. On 23 November 2017, the Commission contacted Mr Watt via telephone and was advised that he was at work but would return the call shortly to provide payment details.

[5] As no response had been received from Mr Watt, the Commission attempted to telephone him on 5 December 2017, however this was unsuccessful and a further voicemail message was left. On 11 December 2017, the Commission telephoned Mr Watt who advised that he would provide a waiver form. Mr Watt was advised that he should provide this form to the Commission as a matter of urgency.

[6] As a completed waiver form had not been received from Mr Watt, the Commission attempted to telephone him on 21 December 2017, however this was unsuccessful and a voicemail message was left requesting he urgently provide advice regarding his application. On the same day, further correspondence was sent to Mr Watt which advised that if payment of the filing fee was not made or a completed waiver form received within seven days, his application may be dismissed.

[7] A final attempt to telephone Mr Watt was made on 2 January 2018, however this was unsuccessful and a voicemail message was left advising that his application would be dismissed if he did not contact the Commission.

[8] To date, no response from Mr Watt has been received.

[9] 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.

[10] 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.

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

COMMISSIONER

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