Errol Edward Sharman v Eugene Navarre

[2024] FWC 1232

[2024] FWC 1232

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Errol Edward Sharman
v

Eugene Navarre

(U2024/2677)

DEPUTY PRESIDENT CLANCY MELBOURNE, 10 MAY 2024

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

1. On 7 March 2024, Mr Errol Edward Sharman made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act).

1. The application was incomplete in that no method of service was provided, Mr Sharman did not pay the required application fee and the Form F80 – Application for waiver of the application fee (Form F80) was incomplete.

1. On 12 March 2024, the Commission attempted to contact Mr Sharman on his nominated telephone number to request the missing details. Mr Sharman did not answer the call. A voicemail message was left requesting a callback.

1. Later that day, the Commission emailed correspondence to Mr Sharman’s nominated email address advising Mr Sharman, amongst other things, that there was missing information in his application and his Form F80. The correspondence also advised Mr Sharman that if he did not provide the required details by 26 March 2024 his application may be dismissed.  An SMS notification was also sent to Mr Sharman’s nominated telephone number, requesting that he contact the Commission.

1. On 14 March 2024, the Commission emailed correspondence to Mr Sharman’s nominated email address reminding him that his application and Form F80 were incomplete.

1. A final attempt to contact Mr Sharman on his nominated telephone number was made by the Commission on 27 March 2024. Mr Sharman did not answer. A voicemail message was left requesting that Mr Sharman provide the required information for the respondent and a completed Form F80. The messaged also advised that if the required information was not received within 3 business days the matter was at risk of being dismissed.

1. To date, no response has been received and Mr Sharman has not provided the necessary details as requested.

1. In relation to an application made pursuant to s.394 of the Act, s.395(1) provides that the application “must be accompanied by any fee prescribed by the regulations.” At the time the application was made, the regulations prescribed a fee of $83.30. The regulations also allow for an application to be made for the fee to be waived.

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

1. In considering all the circumstances, I am satisfied that the relevant application form was not accompanied by the prescribed fee and the application has not been made in accordance with the Act. Given the absence of the fee payment, it is likely that there is no valid application before the Commission[1] and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. Despite the reminders and multiple requests, Mr Baca has not paid the application fee. In these circumstances, I am satisfied that it is appropriate to dismiss the purported application. An Order[2] to this effect will be issued with this decision.

DEPUTY PRESIDENT CLANCY

[1] Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].

[2] PR774903.

Printed by authority of the Commonwealth Government Printer

<PR774902>