Jamie Zehnder v Corbet Johns Builder Pty Ltd

[2022] FWC 643

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jamie Zehnder
v
Corbet Johns Builder Pty Ltd

(U2022/1848)

cOMMISSIONER bISSETT

MELBOURNE, 24 MARCH 2022

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

On 13 February 2022, Mr Jamie Zehnder (Applicant) 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 made by the Applicant was incomplete in that it did not include payment of the required fee or a completed fee waiver form in accordance with s.395 of the FW Act.

On 14 February 2022, the Commission telephoned the Applicant to discuss payment. The Applicant advised he was unable to make payment at that time.

Later that day, the Commission emailed correspondence to Mr Zehnder’s nominated email address advising that his application required payment of the filing fee or a completed fee 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 within 14 days, the application may be dismissed.

As payment had not been received, on 9 March 2022 the Commission made a final attempt to contact the Applicant on his nominated telephone number to discuss payment. The Applicant did not answer the call. A voicemail message was left advising the Applicant that payment of the required fee was still outstanding and requesting a return call.

To date the required fee has not been paid and a completed fee waiver form has not been received.

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.

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 prospects 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 shortly.

COMMISSIONER

[1] PR739624

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Mr Jamie Zehnder, sought relief from unfair dismissal against Corbet Johns Builder Pty Ltd. He applied to the Fair Work Commission for a remedy under the Fair Work Act 2009. However, the application was incomplete as it did not include the required fee or a completed fee waiver form as stipulated by the Fair Work Act. The Commission attempted to contact Mr Zehnder multiple times to discuss payment, but these attempts were unsuccessful. Consequently, the Commission dismissed the application under section 587 of the Fair Work Act.

The primary legal issue was whether the application was dismissed correctly due to the failure to comply with the application fee requirement. The Fair Work Act mandates that an application to the Commission must be accompanied by the prescribed fee, with provisions for fee waivers under certain circumstances. The applicant's failure to pay the fee or provide a completed fee waiver form led to the question of whether the dismissal was justified under section 587 of the Fair Work Act. This section allows for the dismissal of an application if it is not made in accordance with the Act, among other reasons.

The Commissioner found that the application was not made in accordance with the Act because it lacked the required fee or a completed fee waiver form. Given the multiple attempts by the Commission to contact Mr Zehnder and the clear statutory requirement, the Commissioner concluded that the application was correctly dismissed. The dismissal was made pursuant to section 587(1)(a) of the Fair Work Act, which permits the dismissal of an application that does not comply with the Act. Therefore, the application was dismissed, and an order will be issued accordingly.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established