Jacob Willis v Sewture Furniture and Upholstery

[2022] FWC 1750

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jacob Willis
v

Sewture Furniture And Upholstery

(U2022/6393)

COMMISSIONER BISSETT

MELBOURNE, 7 JULY 2022

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

On 17 June 2022 Mr Jacob Willis 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 Willis did not pay the required fee or file a completed waiver form.

On 20 June 2022 the Commission attempted to contact Mr Willis on his nominated telephone number to discuss payment of the required fee however, Mr Willis did not answer the call. A voicemail message was left requesting Mr Willis to pay the filling fee or complete waiver form if he wishes to proceed with the application.

Later that day, the Commission emailed correspondence to Mr Willis’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 14 days, the application may be dismissed. An SMS notification was also sent to Mr Willis’s nominated telephone number, advising that there was a problem with his application and requesting he contact the Commission.

A final attempt to contact Mr Willis was made by the Commission on 4 July 2022 to obtain payment or a completed waiver form. Mr Willis advised that he was unsure if he would proceed with his application or elect to discontinue. The Commission advised that payment was due by close of business 4 July 2022 otherwise the application may be dismissed.

To date there has been no response from Mr Willis, 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 with this decision.

COMMISSIONER

[1] PR743484.

Printed by authority of the Commonwealth Government Printer

The Fair Work Commission dismissed an application for unfair dismissal made by Jacob Willis against Sewture Furniture and Upholstery. The application was dismissed due to non-compliance with the requirements of the Fair Work Act 2009 (FW Act), specifically, the applicant, Mr Willis, did not pay the required fee or file a completed waiver form. The Commission made several attempts to contact Mr Willis to discuss payment of the required fee, however, Mr Willis did not respond to these attempts. The Commission warned that if payment was not made or a waiver form was not received within 14 days, the application may be dismissed. Despite these warnings, Mr Willis did not respond, and the application was dismissed.

The legal issue before the Commission was whether the application complied with the FW Act and, if not, whether the application should be dismissed. The Commission found that the application was not accompanied by the required fee, and therefore, was not made in accordance with the FW Act. The Commission also noted that the application had no reasonable prospect of success, as it was incomplete and the applicant had not responded to attempts to rectify the situation.

In dismissing the application, the Commission relied on s.587(1)(a) of the FW Act, which provides that the Commission may dismiss an application if it is not made in accordance with the Act. The Commission found that the application was not made in accordance with the Act as it was incomplete and did not include the required fee. The Commission also noted that the application had no reasonable prospect of success, as it was incomplete and the applicant had not responded to attempts to rectify the situation.

The Commission ordered that the application be dismissed and that an order to this effect be issued with the decision. The Commission also noted that an order would be issued to this effect.

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