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

[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

[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

Printed by authority of the Commonwealth Government Printer

Dennis Corby brought an application for an unfair dismissal remedy against his former employer, Dave Patel, contending that his dismissal was unjust. The Federal Circuit and Family Court of Australia was tasked with determining whether Corby's application was sufficiently complete to proceed. The primary issue for the court was whether Corby's application met the necessary requirements to be considered complete and, if not, whether any deficiencies could be rectified to allow the application to progress. The court examined the application and found it lacking in several critical areas, including incomplete documentation and failure to address specific statutory requirements. Based on these deficiencies, the court ruled that the application was not complete and dismissed it.

The court noted that for an unfair dismissal application to be valid, it must be accompanied by specific documentation, including a completed application form and relevant evidence. In this instance, Corby's application was missing essential components, and he had not provided sufficient information to allow the court to assess the merits of his claim. The court held that these shortcomings meant the application could not proceed and dismissed it. The court also considered whether there were any grounds to allow Corby to amend his application to rectify the deficiencies. However, the court concluded that the deficiencies were such that they could not be remedied and that the application must be dismissed. The court's decision was final, and Corby's application for an unfair dismissal remedy was unsuccessful.

Dennis Corby v Dave Patel

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established