Jesse Jamesion v Nathan Cooper

[2025] FWC 90

[2025] FWC 90

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jesse Jamesion
v

Nathan Cooper

(U2024/11788)

DEPUTY PRESIDENT BEAUMONT PERTH, 10 JANUARY 2025

Application for an unfair dismissal remedy – unpaid application fee – application is not made in accordance with this Act – application dismissed – s.587(1)(a).

1. On 2 October 2024, Mr Jesse Jamesion made an unfair dismissal application (the Application) to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) (the Act).

1. For the reasons that follow I am satisfied that the Application has not been made in accordance with the Act and that it is appropriate to dismiss the Application.

1. Section 395 of the Act is in the following terms:

“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. The Application was incomplete because Mr Jamesion did not pay the required fee or file a completed request to waive the fee.

1. Commission staff contacted Mr Jamesion on the following dates:

·   7 October 2024 by email;

·   8 October 2024 by SMS;

·   10 October 2024 by email; and

·   14 October 2024 by telephone.

1. Mr Jamesion was advised that he must pay the filing fee or apply for a waiver if he wished to proceed with the application. Mr Jamesion was also warned that the application could be dismissed if the filing fee was not paid within seven calendar days.

1. On 14 October 2024, Mr Jamesion responded, however did not provide any additional relevant information regarding the outstanding application fee.

1. To date there has been no further response from Mr Jamesion, no fee paid and no waiver request received.

1. Section 587 of the Act includes the following provisions:

““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.

…

(3)       The FWC may dismiss an application:

(a)       on its own initiative; or

(b)       on application.”

1. The Application was not made in accordance with the Act (per s.587(1)(a)) because the prescribed fee (per s.395) has not been paid or waived. Section 587 confers a discretion on the Commission to dismiss the Application.

1. Insofar as it is relevant, it is further observed that the Respondent does not appear to be a national system employer, and the Respondent asserts that the Applicant was a subcontractor.

1. Mr Jamesion has been given ample opportunity to rectify the deficiency in the Application with respect to the unpaid fee (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [15]-[16] and the cases cited therein). The Commission’s inquiries and warnings have largely been ignored.

1. In the circumstances I am satisfied that the Application should be dismissed.

1. I have separately made an order dismissing the application (PR783160).

DEPUTY PRESIDENT

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