Jamie Cooper v Andrew Mathers Removals

[2024] FWC 3375

[2024] FWC 3375

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jamie Cooper
v

Andrew Mathers Removals

(U2024/12261)

DEPUTY PRESIDENT CLANCY MELBOURNE, 4 DECEMBER 2024

Application for relief from unfair dismissal – dismissal under s.587 at the Commission’s initiative.

1. Mr Jamie Cooper lodged an unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on 14 October 2024.

1. The application was incomplete in that Mr Cooper did not pay the required application fee or lodge a completed Form F80 – Application for waiver of the application fee (Form F80). Mr Cooper lodged an incomplete Form F80 on 14 October 2024.

1. On 18 October 2024, the Commission attempted to contact Mr Cooper on his nominated telephone number to discuss his incomplete Form F80. However, the call was not answered, and a voicemail message was left requesting Mr Cooper to contact the Commission.

1. Later that day, the Commission emailed correspondence to Mr Cooper’s nominated email address informing him that payment of the application fee or a completed Form F80 was required for the Commission to progress his unfair dismissal application. That correspondence warned Mr Cooper that if payment was not made or a completed Form F80 was not received within 14 calendar days, his unfair dismissal application may be dismissed.

1. On 4 November 2024, the Commission attempted to contact Mr Cooper on his nominated telephone number to remind him that his application required payment of the application fee or a completed Form F80. A voicemail was left warning him to urgently contact the Commission as his application was at risk of being dismissed.

1. A final attempt to contact Mr Cooper was made by the Commission by telephone on 7 November 2024 to follow up on the outstanding application fee. The call was answered and Mr Cooper stated that he would provide a completed Form F80 by close of business on 8 November 2024. Mr Cooper was informed that his application was at risk of being dismissed if a completed Form F80 was not received or if payment was not receiveds by close of business on 8 November 2024.

1. To date, there has been no response from Mr Cooper, the required fee has not been paid and a completed Form F80 has not been received.

1. Section 395 of the 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.” (bold text in the original)

1. In relation to an application made pursuant to s.394 of the Act, s.395(1) relevantly provides that the application “must be accompanied by any fee prescribed by the regulations.” Regulation 3.07 of the Fair Work Regulations 2009 (Cth) sets out the amount of the fee for making an unfair dismissal application.

1. Section 587 of the Act relevantly 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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A.

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.” (bold text in the original)

1. The material before the Commission indicates that the relevant application form was not accompanied by the prescribed fee and that Mr Cooper has not lodged a completed Form F80. I am satisfied that the application has not been made in accordance with the Act. Given the absence of the fee payment or a completed Form F80, it is likely that there is no valid application before the Commission and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. Despite the attempts by the Commission to contact Mr Cooper, there has been no response. In these circumstances, I am satisfied that it is appropriate in all the circumstances to dismiss the purported application. An order[1] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] PR782017.

Printed by authority of the Commonwealth Government Printer

<PR782016>