Jakob Walsh v Newnham Scaffolding Pty Ltd T/A Newnham Scaffolding Pty Ltd

[2017] FWC 4391

[2017] FWC 4391

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jakob Walsh
v
Newnham Scaffolding Pty Ltd T/A Newnham Scaffolding Pty Ltd
(U2017/8110)

DEPUTY PRESIDENT CLANCY MELBOURNE, 24 AUGUST 2017

Application for an unfair dismissal remedy.

[1] On 27 July 2017, Mr Jakob Walsh made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In his application, Mr Walsh noted in the comments section that he was “unable to complete [the] financial hardship waiver on my device.”

[3] On 28 July 2017, in addition to confirming via telephone the date Mr Walsh commenced working for Newnham Scaffolding Pty Ltd (Newnham Scaffolding), the Fair Work Commission advised it would send an application for fee waiver to Mr Walsh by email for him to complete and return. Correspondence was sent to Mr Walsh which sought that he complete his Application form with his date of commencement at Newnham Scaffolding and an application for fee waiver was also provided. Mr Walsh was advised in the absence of any advice from him within 14 days, his application may be dismissed.

[4] As no response had been received, on 7 August 2017 the Commission rang Mr Walsh who advised he did not receive an email with waiver form attached on 28 July 2017. Mr Walsh was advised by telephone and in correspondence which was sent to him that day that his application was at risk of being dismissed if he did not respond. An application for fee waiver was again attached to the correspondence for Mr Walsh to complete.

[5] On 14 August 2017, a further telephone call was made to Mr Walsh regarding the status of his outstanding documentation. Mr Walsh confirmed he received the correspondence of 7 August 2017, though advised it did not have any attachments. An offer was made to talk Mr Walsh through retrieving the form from the Commission’s website, however he advised he was working and would return the call in the afternoon.

[6] On 15 August 2017, during another phone call, Mr Walsh advised he would lodge a completed application for fee waiver later the same day.

[7] To date, no application for fee waiver has been received from Mr Walsh.

[8] Section 395 of the Act, which deals with application fees, provides:

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.

[9] Section 587(1) of the 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 prospects of success.

[10] Having regard to the circumstances of this matter, I am satisfied that as the application was not accompanied by the fee prescribed by the Act, the application was not made in accordance with the Act. As such, the application is dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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