David Watt v Skillinvest Limited

[2024] FWC 3377

[2024] FWC 3377

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

David Watt
v

Skillinvest Limited

(U2024/11374)

DEPUTY PRESIDENT CLANCY MELBOURNE, 4 DECEMBER 2024

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

1. Mr David Watt lodged an unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on 24 September 2024.

1. The application was incomplete in that Mr Watt did not pay the required application fee or lodge a completed Form F80 – Application for waiver of the application fee (Form F80). Mr Watt lodged an incomplete Form F80 on 24 September 2024.

1. On 27 September 2024, the Commission attempted to contact Mr Watt on his nominated telephone number to discuss his incomplete Form F80. The call was answered and Mr Watt stated that he would lodge a completed Form F80.

1. Later that same day, the Commission emailed correspondence to Mr Watt’s nominated email address informing him that payment of the application fee or a completed Form F80 was required for the Commission to progress his unfair dismissal application. That correspondence warned Mr Watt that if payment was not made or a Form F80 was not received within 14 calendar days, his unfair dismissal application may be dismissed.

1. A final attempt to contact Mr Watt was made by the Commission by telephone on 16 October 2024 to follow up on payment of the outstanding application fee or lodgment of a completed Form F80. Mr Watt could not be reached, and a voicemail message was left requesting Mr Watt to contact the Commission.

1. To date, there has been no response from Mr Watt, the required fee has not been paid and a completed Form F80 has not been received.

1. Section 395 of the 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.” (bold text in the original)

1. In relation to an application made pursuant to s.394 of the Act, s.395(1) relevantly provides that the application “must be accompanied by any fee prescribed by the regulations.” Regulation 3.07 of the Fair Work Regulations 2009 (Cth) sets out the amount of the fee for making an unfair dismissal application.

1. Section 587 of the Act relevantly 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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A.

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.” (bold text in the original)

1. The material before the Commission indicates that the relevant application form was not accompanied by the prescribed fee and that Mr Watt has not lodged a completed Form F80. I am satisfied that the application has not been made in accordance with the Act. Given the absence of the fee payment or a completed Form F80, it is likely that there is no valid application before the Commission and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. Despite the attempts by the Commission to contact Mr Watt, there has been no response. In these circumstances, I am satisfied that it is appropriate in all the circumstances to dismiss the purported application. An order[1] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] PR782025.

Printed by authority of the Commonwealth Government Printer

<PR782024>