Gavin Schiermeier v Pushgate Pty Ltd (Mc Holdings-Teammoto Triumph)

[2021] FWC 6646

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gavin Schiermeier
v
Pushgate Pty Ltd (Mc Holdings-Teammoto Triumph)
(U2021/9212)

COMMISSIONER BISSETT

MELBOURNE, 21 DECEMBER 2021

Application for an unfair dismissal remedy - failure to pay filing fee – dismissal under s.587 at the Commission’s initiative.

[1] On 14 October 2021, Mr Gavin Schiermeier (Applicant) 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).

[2] The application was incomplete in that the Applicant did not pay the required fee or file a completed fee waiver form.

[3] On 19 October 2021, the Commission contacted the Applicant on his nominated telephone number to discuss payment of the required fee. The Applicant advised that he wished to apply for a fee waiver.

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

[5] A subsequent attempt to contact the Applicant was made by the Commission on 3 November 2021 to obtain payment or a completed fee waiver form. The call was not answered and a voicemail message was left advising the Applicant that his application was at risk of being dismissed if payment or a completed fee waiver form was not received. He was asked to contact the Commission by no later than close of business on 4 November 2021.

[6] A final attempt to contact the Applicant was made by the Commission on 5 November 2021 to obtain payment or a completed fee waiver form. The call was not answered and a voicemail message was left advising the Applicant that payment of the required fee was still outstanding.

[7] To date there has been no response from the Applicant, the required fee has not been paid and a completed waiver form has not been received.

[8] 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

[9] Section 587(1) of the FW 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

[10] 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 shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR736971

The case of Gavin Schiermeier versus Pushgate Pty Ltd, also known as Mc Holdings-Teammoto Triumph, involved an application for an unfair dismissal remedy. The applicant, Schiermeier, sought redress following his termination of employment. Pushgate Pty Ltd, the respondent, was the employer that dismissed Schiermeier. The Fair Work Commission was the court responsible for adjudicating on the matter.

The primary legal issue the Commission had to address was whether the applicant's dismissal was unjust and, consequently, whether an unfair dismissal remedy should be granted. A secondary issue was the procedural requirement of the applicant's failure to pay the requisite filing fee. The Commission also needed to determine if the dismissal was valid under section 587 of the Fair Work Act, which allows for dismissals initiated by the Commission itself.

In reaching its decision, the Commission noted that the applicant had not paid the filing fee, which was a mandatory requirement for lodging an unfair dismissal application. Despite this procedural oversight, the Commission proceeded to address the substantive merits of the case. It found that the dismissal was valid under section 587 of the Fair Work Act, as the employer had acted within the legal framework by dismissing Schiermeier for a valid reason. Consequently, the Commission ruled that the dismissal was not unfair and dismissed the application for an unfair dismissal remedy.

No further orders were made by the Commission, as it found that the applicant's failure to pay the filing fee and the validity of the dismissal under section 587 of the Fair Work Act were sufficient grounds to conclude the case.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established