Jason Thompson v Sibelco Australia Pty Ltd T/A Silbelco

[2017] FWC 2273

[2017] FWC 2273

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jason Thompson
v
Sibelco Australia Pty Ltd T/A Silbelco
(U2017/3310)

DEPUTY PRESIDENT CLANCY MELBOURNE, 26 APRIL 2017

Application for an unfair dismissal remedy.

[1] On 27 March 2017, Mr Jason Thompson made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The application was filed by The Australian Workers’ Union (the AWU) on behalf of Mr Thompson. The application indicated Mr Thompson would tend to payment of the application fee.

[2] Mr Thompson did not pay the required fee.

[3] On 28 March 2017, the Fair Work Commission attempted to contact Mr Thompson via telephone, however, there was no answer and no voicemail was able to be left. Email correspondence dated 28 March 2017 was sent to the AWU, addressed to Mr Thompson, advising that payment of the lodgement fee or a completed waiver form was required if he wished to proceed with his application. Mr Thompson was advised in the absence of any advice from him within 14 days, his application may be dismissed. Shortly after, Mr Thompson telephoned the Commission and said he was not aware there was an application fee and requested an application for fee waiver be provided, which was then sent to him by email.

[4] On 11 April 2017, the Commission again attempted to contact Mr Thompson via telephone with no success. As voicemail could not be left, email correspondence of the same date was then sent to Mr Thompson, noting that the application fee had not been paid and no application for fee waiver had been received. A further waiver of application fee form was provided and Mr Thompson was advised in the absence of any advice from him within 14 days, his application may be dismissed. Mr Thompson telephoned the Commission later the same day and said he thought he emailed a completed application for fee waiver on 28 March 2017. After checking for this, the Commission advised it had not received the application. Mr Thompson said he would complete the form that evening.

[5] On 18 April 2017, as the Commission had still not received payment or an application for fee waiver, a further telephone call was made to Mr Thompson. He advised he was not in a position to pay the application fee until the following week, but could complete an application for fee waiver. Mr Thompson was advised he needed to complete the fee waiver application as soon as possible and he said he would do so that night.

[6] A further week has passed and Mr Thompson has not made payment of the application fee and no application for fee waiver has been received. He has been sent the fee waiver application form three times and been followed up on at least seven occasions in relation to his application.

[7] 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.

[8] 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.

[9] 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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