Errol Edward Sharman v Eugene Navarre

[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.

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).

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.

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.

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.

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.

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.

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

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.

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.

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

CaseChat Overview and Summary

Errol Edward Sharman applied to the Fair Work Commission for a remedy for unfair dismissal under the Fair Work Act 2009. The application was incomplete in that it lacked the required application fee and a method of service. Additionally, the accompanying Form F80 for a fee waiver was incomplete. The Commission made several attempts to contact Mr Sharman to request the missing information and fee payment. Despite reminders and requests, Mr Sharman did not provide the required details, leading to the application being dismissed under section 587 of the Act. The Deputy President found that the application was not made in accordance with the Act due to the missing fee and incomplete form, thus dismissing the application.

The legal issues in this case centred on whether the application met the requirements of section 394 of the Fair Work Act and whether the application could be dismissed under section 587 of the Act due to non-compliance. The key issue was whether the application, being incomplete and lacking the required fee, could be considered valid. Another issue was whether Mr Sharman's failure to respond to the Commission's requests justified dismissal of the application. The Deputy President considered the Act's provisions and the Commission's attempts to contact Mr Sharman to determine whether the application could be dismissed.

The Deputy President examined the procedural requirements of section 394 of the Fair Work Act and the circumstances surrounding Mr Sharman's application. The Act mandates that an application for unfair dismissal must be accompanied by the prescribed fee, which was not provided. The Commission's attempts to contact Mr Sharman to request the missing information and fee payment were detailed. The Deputy President noted that Mr Sharman did not respond to any of these attempts, leading to the conclusion that the application was not in compliance with the Act. The Deputy President found that the application was non-compliant and dismissed it under section 587(1)(a) of the Act, which allows for the dismissal of applications that are not made in accordance with the Act. The Deputy President concluded that no valid application was before the Commission and issued an order to this effect.

This decision highlights the importance of adhering to the procedural requirements when making an application to the Fair Work Commission. The dismissal of Mr Sharman's application serves as a reminder that incomplete applications, particularly those lacking the required fee, will not be considered. The Commission's efforts to contact Mr Sharman and provide him with multiple opportunities to rectify the deficiencies in his application were also noted. Ultimately, the Deputy President's decision underscores the necessity for applicants to comply with the Act's requirements to ensure their applications are valid and considered by the Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established