James Cormick v The Trustee for Caldera Cooling & Co Trust

[2023] FWC 2208

[2023] FWC 2208

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

James Cormick
v

The Trustee For Caldera Cooling & Co Trust

(U2023/6907)

COMMISSIONER BISSETT MELBOURNE, 1 SEPTEMBER 2023

Application for an unfair dismissal remedy

1. On 27 July 2023 Mr James Cormick made an application to the Fair Work Commission (the Commission) for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

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

1. On 31 July 2023 the Commission sent correspondence to Mr Cormick’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 his application. That correspondence also warned that if payment is not made or a waiver form is not received within 7 calendar days his application may be dismissed.

1. On 1 August 2023 an SMS notification was sent to Mr Cormick’s nominated telephone number advising of the requirement to action the payment request email from the Commission.

1. On 3 August 2023 the Commission emailed correspondence to Mr Cormick’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 is not made or a waiver form is not received, the application may be dismissed. 

1. A final attempt to contact Mr Cormick on his nominated telephone number was made by the Commission on 7 August 2023, however, the call was not answered. A voicemail message was left advising Mr Cormick that payment of the required fee was still outstanding and that if payment is not made or a waiver form is not received, his application may be dismissed. 

1. On 15 August 2023 the Commission attempted to contact the applicant’s representative on their nominated telephone number, however, the call was not answered. A voicemail message was left advising them that payment of the required fee was still outstanding and that if payment is not made or a waiver form is not received, the application may be dismissed.

1. Later that day, a final attempt to contact the applicant’s representative via their nominated email address was made. That correspondence advised that the application required payment of the filing fee or a completed waiver form if they wished to proceed with the application. That correspondence also warned that if payment is not made or a waiver form is not received, the application may be dismissed. 

1. To date there has been no response from Mr Cormick, or his representative, 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 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 prospect of success.

1. 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.

COMMISSIONER

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