Jason Thurlow v Millennium Marine (Aust) Pty Ltd
[2023] FWC 3423
•21 DECEMBER 2023
| [2023] FWC 3423 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jason Thurlow
v
Millennium Marine (Aust) Pty Ltd
(U2023/9625)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 21 DECEMBER 2023 |
Application for an unfair dismissal remedy – application dismissed.
On 4 October 2023, an application was made on behalf of Mr Jason Thurlow (Applicant) 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 was signed and lodged by Employee Dismissals, as paid agent for Mr Thurlow.
The application was incomplete in that Mr Thurlow had not paid the required application fee, nor lodged a complete Form F80 – Application for waiver of the application fee (Form F80).
On 9 October 2023, the Commission emailed correspondence to Mr Thurlow’s nominated email address advising that his application required payment of the application fee or a completed Form F80 if he wished to proceed with the application. That correspondence also warned that if payment was not made or a Form F80 completed within 7 calendar days his application may be dismissed. On 17 October 2023, the Commission emailed correspondence to Mr Thurlow’s nominated email address, again reminding him that his application required payment of the application fee or a completed Form F80 if he wished to proceed and warning him that his application may be a risk of dismissal. Mr Thurlow replied to the Commission’s email informing the Commission that he was unable to pay the fee and was at risk of becoming homeless. On 19 October 2023, Mr Thurlow filed a Form F80 and the Commission granted the fee waiver.
On 26 October 2023, the Commission emailed a notice of listing to the parties notifying them of a telephone staff conciliation to be held at 2:15PM on 14 November 2023. On 9 November 2023, the Respondent emailed the Commission confused about the listing and the request to file a Form F3 – Employer Response. The Respondent stated that the matter had been dealt with already via a telephone staff conciliation two weeks earlier.
On 14 November 2023, the Commission called Employee Dismissals who informed the Commission that they had been unable to contact Mr Thurlow for two weeks. The Commission then also called the Respondent, who was frustrated that they were being called again regarding a matter which they stated had already been resolved. A search of the Commission’s matters revealed that two separate applications had been lodged regarding the same matter. On 29 September 2023, Mr Thurlow had lodged an application himself, this was given the matter number U2023/9375 and was resolved, via staff conciliation, on 26 October 2023. Five days after the initial application lodged by Mr Thurlow, Employee Dismissals lodged the application giving rise to this matter.
Entirely unhelpfully, Employee Dismissals filed a Form F54 – Notice of Representative Ceasing to Act (Form F54) on 16 November 2023. Employee Dismissals had added absolutely nothing to this process. On 4 December 2023, the Commission emailed Mr Thurlow on his nominated email address seeking that he discontinue the matter by the end of the day, or his matter will be dismissed.
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.
In considering all the circumstances, I am satisfied that this application now concerns an otherwise resolved matter. It may be discerned that, in the unlikely event that Mr Thurlow ever sought to reagitate his dispute, the Respondent would likely argue that there has been a binding settlement agreement made in respect of the other application, such that this application has no reasonable prospects of success. I have therefore determined that this application has no reasonable prospects of success. The application is therefore dismissed under s.587(1)(c) of the FW Act. An Order[1] to this effect will be issued with this decision.
DEPUTY PRESIDENT
[1] PR769649.
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