Harrison Taylor v John Cassimatis Summary

[2023] FWC 32

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Harrison Taylor
v

John Cassimatis

(U2022/11307)

COMMISSIONER BISSETT

MELBOURNE, 5 JANUARY 2023

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

On 27 November 2022 Mr Harrison Taylor 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).

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

On 29 November 2022 the Commission emailed correspondence to Mr Taylor’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 7 calendar days the application may be dismissed.

On 12 December 2022 the Commission emailed correspondence to Mr Taylor’s nominated email address reminding 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, the application may be dismissed.

A final attempt to contact Mr Taylor on his nominated telephone number was made by the Commission on 20 December 2022 to obtain payment or a completed waiver form. A voicemail message was left advising Mr Taylor that payment of the required fee was still outstanding.

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

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.

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

(c) the application has no reasonable prospect of success.

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, I order that the application is dismissed pursuant to s.587(1)(a) of the FW Act.

COMMISSIONER

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CaseChat Overview and Summary

In the case of Harrison Taylor v John Cassimatis, the applicant, Mr. Harrison Taylor, sought a remedy for unfair dismissal under section 394 of the Fair Work Act 2009. The respondent, John Cassimatis, was the employer against whom the unfair dismissal claim was made. The dispute was brought before the Fair Work Commission, and the matter was presided over by Commissioner Bissett. The primary issue before the Commission was whether the applicant's application for unfair dismissal was properly filed according to the requirements of the Fair Work Act 2009. Specifically, the Commission had to determine if the application was dismissed due to the failure to pay the requisite filing fee or to provide a completed waiver form, as mandated by the Act.

The Commission examined the procedural aspects of the application and found that Mr. Taylor had not adhered to the statutory requirements. Despite multiple reminders and warnings from the Commission, Mr. Taylor failed to either pay the prescribed fee or submit a completed waiver form. The Commission's correspondence to Mr. Taylor, both via email and voicemail, underscored the necessity of these actions to proceed with the application. Ultimately, the Commission determined that the application was not in compliance with the Fair Work Act, as it lacked the necessary fee. Accordingly, the application was dismissed under section 587(1)(a) of the Act for not being made in accordance with the Act. The Commission's decision was based on the clear statutory requirement that an application must be accompanied by the prescribed fee, a condition that was unmet in this case.

As a result of the findings, the Fair Work Commission dismissed the application for unfair dismissal. The Commission's decision was grounded in the statutory obligation under the Fair Work Act 2009, which mandates that applications must be accompanied by the required fee or a waiver form. Since neither was provided by Mr. Taylor, the application was dismissed, and no further action will be taken on the merits of the unfair dismissal claim. This outcome highlights the importance of adhering to procedural requirements when making an application to the Fair Work Commission.

Harrison Taylor v John Cassimatis

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established