Jack Smith-Cavanagh v Coles Supermarkets Australia Pty Ltd
[2022] FWC 2860
•25 OCTOBER 2022
| [2022] FWC 2860 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jack Smith-Cavanagh
v
Coles Supermarkets Australia Pty Ltd
(U2022/9969)
| COMMISSIONER BISSETT | MELBOURNE, 25 OCTOBER 2022 |
Application for relief from unfair dismissal – unpaid application – dismissal under s.587 at the Commission’s initiative.
On 11 October 2022 Mr Jack Smith-Cavanagh 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 Smith-Cavanagh did not pay the required fee or file a completed waiver form.
On 13 October 2022 the Commission attempted to contact Mr Smith-Cavanagh on his nominated telephone number to discuss payment of the required fee however, Mr Smith-Cavanagh did not answer the call. A voicemail message was left requesting payment of the filing fee.
Later that day, the Commission emailed correspondence to Mr Smith-Cavanagh’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 is not made or a waiver form is not received within 7 days, the application may be dismissed.
On 14 October 2022 the Commission sent an SMS notification to Mr Smith-Cavanagh’s nominated telephone number advising that he needed to action the payment request email from the Commission to pay the application fee.
On 17 October 2022 the Commission emailed correspondence to Mr Smith-Cavanagh’s nominated email address reminding him 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 not received, the application may be dismissed.
A final attempt to contact Mr Smith-Cavanagh was made by the Commission on 19 October 2022 to obtain payment or a completed waiver form. The call was not answered, and a voicemail message was left advising Mr Smith-Cavanagh that payment of the required fee was still outstanding.
To date there has been no response from Mr Smith-Cavanagh, 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:
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.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
<PR747173>
[1] PR747174
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