Dennis Corby v Dave Patel

[2019] FWC 7638

[2019] FWC 7638

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dennis Corby
v
Dave Patel
(U2019/11402)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 7 NOVEMBER 2019

Application for an unfair dismissal remedy – non-payment – application incomplete – application dismissed.

[1] On 10 October 2019, Mr Dennis Corby made an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (FW Act).

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

[3] Section 395 of the FW 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.”

[4] On 14 October 2019, the Fair Work Commission (the Commission) contacted Mr Corby by telephone and advised that his application required payment of the filing fee or a completed waiver form if he wished to proceed.

[5] On 18 October 2019, the Commission sent Mr Corby a letter by email, the letter reiterated Mr Corby’s obligation to make payment of the prescribed fee, and a copy of the Application for Fee Waiver was attached. Mr Corby was advised that if a waiver was not filed, or payment made, within 14 days of the letter, his application may be dismissed.

[6] On 29 October 2019, the Commission contacted Mr Corby’s nominated representative, Ms Ellis, who asked to be called back later in the day. The Commission called Ms Ellis back at the specified time but reached her voicemail, a message was left asking for her to return the call. The Commission called Mr Corby, who was also not available to speak at the time, the Commission staff reminded Mr Corby that his application may be dismissed if it is not paid and that he should call the Commission back to make payment.

[7] Neither Mr Corby or Ms Ellis have responded further, made payment, or provided a completed waiver form.

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.”

[8] 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 section 587(1)(a) of the FW Act. An Order to this effect will be issued.

DEPUTY PRESIDENT

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