Jake McClelland v Early Childhood Australia NT

[2022] FWC 31

[2022] FWC 31

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jake McClelland
v

Early Childhood Australia NT

(U2021/11459)

COMMISSIONER BISSETT MELBOURNE, 11 JANUARY 2022

Application for an unfair dismissal remedy

1. On 10 December 2021 Mr Jake McClelland 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). Mr McClelland allege he was unfairly dismissed by Early Childhood Australia NT (the Respondent) on 19 November 2021.

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

1. On 15 December 2021 the Commission attempted to contact Mr McClelland on his nominated telephone number to discuss payment of the required fee. Mr McClelland answered the call and said he would call back later to make payment.

1. Later that day, the Commission emailed correspondence to Mr McClelland’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.

1. A final attempt to contact Mr McClelland was made by the Commission on 30 December 2021 to obtain payment or a completed waiver form. The call was not answered, and a voicemail message was left advising Mr McClelland that payment of the required fee was still outstanding.

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

1. 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.

1. 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.

1. 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

[1] PR737374.

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<PR737373>