Donald Joseph Silk v Flight Club Perth

[2025] FWC 566

FAIR WORK COMMISSION

DECISION and ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Donald Joseph Silk
v

Flight Club Perth

(U2024/15019)

DEPUTY PRESIDENT EASTON

SYDNEY, 24 FEBRUARY 2025

Application for an unfair dismissal remedy remedy – application fee not paid or waived – application not made in accordance with the Act - application dismissed.

On 12 December 2024, Mr Donald Silk made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

Mr Silk’s application was not made in accordance with the Act (per s.587(1)(a)) because the prescribed fee (per s.395) has not been paid or waived. Section 587 confers a discretion on the Commission to dismiss Mr Silk’s application.

Commission staff attempted to contact Mr Silk on 17, 18, 31 December 2024 and 2 January 2025 by SMS and/or email and telephone.

Mr Silk has had ample opportunity to rectify the deficiency in his application and has had ample opportunity to show why his application should not be dismissed under s.587 (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [15]-[16] and the cases cited therein).

I have decided to dismiss Mr Silk’s unfair dismissal application and make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Donald Silk on 12 December 2024 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission dismissed an unfair dismissal application made by Mr Donald Joseph Silk against Flight Club Perth. The application was dismissed on the basis that the prescribed fee was not paid or waived, and the application was therefore not made in accordance with the Fair Work Act 2009. The Deputy President of the Commission, Mr Easton, made the decision in Sydney on 24 February 2025. Mr Silk's application was lodged on 12 December 2024 and the Commission attempted to contact him multiple times to rectify the deficiency. Despite these attempts, Mr Silk did not pay the fee or demonstrate why his application should not be dismissed.

The central legal issue before the Commission was whether Mr Silk's application for an unfair dismissal remedy was valid and properly made under the Act. The Fair Work Act 2009 requires that applications be accompanied by the prescribed fee, and the Commission has the discretion to dismiss an application that is not made in accordance with the Act. The Commission considered Mr Silk's failure to pay the fee and his lack of response to the Commission's attempts to contact him. The Deputy President found that Mr Silk had ample opportunity to rectify the deficiency and show why his application should not be dismissed.

In reaching the decision to dismiss the application, the Deputy President considered the statutory requirements for lodging an application under the Fair Work Act and the Commission's discretion under s.587. The Commission found that Mr Silk's application did not meet the statutory requirements because the prescribed fee was not paid or waived. The Deputy President also noted that Mr Silk had failed to respond to the Commission's attempts to contact him and provide a reason for why his application should not be dismissed. The Commission concluded that Mr Silk had ample opportunity to rectify the deficiency and show why his application should not be dismissed. As such, the Deputy President dismissed the application under s.394 of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established