Jacob Birch v Services Australia

[2021] FWC 6630

[2021] FWC 6630

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jacob Birch
v
Services Australia
(U2021/8985)

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 6 October 2021, Mr Jacob Birch (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 a fee waiver form.

[3] On 13 November 2021, the Commission attempted to contact the Applicant on his nominated telephone number to discuss payment however, the Applicant did not answer the call. A voicemail message was left requesting he contact the Commission to make payment.

[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 waiver form if he wished to proceed with the application. That correspondence also warned that if the Applicant did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to the Applicant’s nominated telephone number, requesting he contact the Commission in regard to his application.

[5] On 25 October 2021 the Commission made a further attempt to contact the Applicant to obtain payment or a completed waiver form however the Applicant could not be reached. A voicemail message was left advising the Applicant that payment of the required fee was still outstanding and that the application was at risk of being dismissed if he did not contact the Commission.

[6] On 1 November 2021 the Applicant sent email correspondence to the Commission advising that he wanted to complete a fee waiver form however he did not have access to a printer to print the form. The Commission wrote to the Applicant later that day attaching a fee waiver form and advising the Applicant to complete the form, and to return it to the Commission “within the next 48 hours”. The correspondence also advised the Applicant to contact the Commission if he required assistance with the form”.

[7] As the Applicant failed to file a completed fee waiver form, on 5 November the Commission made a final attempt to contact the Applicant on his nominated telephone number to obtain payment or a completed waiver form. The call was not answered and a voicemail message was left advising Mr Birch that payment of the required fee was still outstanding.

[8] To date, the required fee has not been paid and a completed fee waiver form has not been received.

[9] 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.

[10] 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 prospects of success.

[11] 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

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