David Watt v LD Total T/A Sainpoint Pty Ltd

[2016] FWC 7948

[2016] FWC 7948

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Watt
v
LD TOTAL T/A Sainpoint PTY LTD
(U2016/12391)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 3 NOVEMBER 2016

Application for relief from unfair dismissal – incomplete application – application dismissed.

[1] On 11 October 2016, Mr David Watt made an application for remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] The F2 unfair dismissal application form (the Application) filed by Mr Watt in the Fair Work Commission (the Commission) was incomplete in the following respects:

• Question 1.1 was not completed; and



• The Application was not accompanied by payment of the filing fee and the waiver of application fee form was blank.

[3] On 11 October 2016, Mr Watt was requested by letter sent to his designated email address to provide further details in regards to his period of employment by completing question 1.1 and the waiver of application fee form no later than 25 October 2016. On the same day, a member of the Perth registry contacted Mr Watt by phone to advise him of the need to complete the Application and waiver of application fee form.

[4] A member of the Perth registry contacted Mr Watt again by telephone on 17 October 2016 requesting that the Application be completed. Mr Watt committed to providing the completed documents by close of business on that day but failed to do so.

[5] A further attempt was made to contact Mr Watt by telephone on 26 October 2016 and a voicemail message was left requesting that he make urgent contact with the Commission and cautioning that if he did not do so, his Application may be dismissed.

[6] Mr Watt did not contact the Commission or provide the necessary details as requested.

[7] Section 395, 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.”

[8] 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.

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

[10] I am satisfied that as the Application was not accompanied by the fee prescribed by the Act or a completed waiver of fee application form, 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 (PR587189) to this effect will be issued.

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<Price code A, PR587188>