Dominic McSweeney v Colliers International (Brisbane) Pty Ltd

[2022] FWC 1717

[2022] FWC 1717

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Dominic McSweeney
v

Colliers International (Brisbane) Pty Ltd

(U2022/6293)

COMMISSIONER o’neill MELBOURNE, 5 JULY 2022

Application for an unfair dismissal remedy – unpaid application – dismissal under s.587 at the Commission’s initiative.

1. On 14 June 2022 Dominic McSweeney made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

1. The application was incomplete in that McSweeney did not pay the required fee or file a completed waiver form.

1. On 15 June 2022 the Commission attempted to contact Mr McSweeney on his nominated telephone number to discuss payment of the required fee however, Mr McSweeney did not answer the call. A voicemail to text message was left requesting he contact the Commission.

1. Later that day, the Commission emailed correspondence to Mr McSweeney’s nominated email address advising that his application required payment of the filing fee or a completed waiver form if he wished to proceed with the application. That correspondence also warned that if payment was not made or a waiver form was not received within 14 days, the application may be dismissed.

1. A final attempt to contact Mr McSweeney was made by the Commission on 27 June 2022 to obtain payment or a completed waiver form. Mr McSweeney advised that he would call back at the end of the day to pay the application fee. Mr McSweeney was informed that if payment was not made by close of business 28 June 2022 the matter may be dismissed.

1. To date there has been no further response from Mr McSweeney, the required fee has not been paid and a completed waiver form has not been received.

1. Section 395 of the FW 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.

1. Section 587(1) of the FW 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 prospect of success.

1. 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 s.587(1)(a) of the FW Act. An order[1] to this effect will be issued with this decision.

COMMISSIONER

[1] PR743334.

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