Joel Marsland v Sitesec Pty. Ltd

[2024] FWC 2432

[2024] FWC 2432

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Joel Marsland
v

Sitesec Pty. Ltd.

(U2024/6961)

DEPUTY PRESIDENT CLANCY MELBOURNE, 6 SEPTEMBER 2024

Application for an unfair dismissal remedy – dismissal under s.587 at the Commission’s initiative

1. At 12:26am on Tuesday 18 June 2024, Mr Joel Marsland (the 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).

1. The application was incomplete in that Mr Marsland did not pay the required fee nor lodge a complete Form F80 – Application for waiver of the application fee (Form F80).

1. On Friday 21 June 2024, the Commission attempted to contact Mr Marsland on his nominated telephone number. The call was not answered, and a voicemail was left advising the Applicant that the Form F80 he provided was incomplete and that a completed Form F80 or payment of the application fee was required. Later that day, the Commission emailed correspondence to Mr Marsland’s nominated email address advising him that his application required payment of the application fee or a completed Form F80 if he wished to proceed. That correspondence warned that if payment was not made or a completed Form F80 was not received by 5 July 2024, his application may be dismissed. A text message was also sent to the Applicant requesting that he call the Commission regarding the incomplete Form F80.

1. On Monday 8 July 2024, the Commission made a second telephone call to Mr Marsland’s nominated telephone number to remind him that his application required payment of the application fee or a completed Form F80 to proceed. A voicemail message was left, warning the Applicant that if payment was not made or if a Form F80 was not received, his application may be dismissed.

1. Mr Marsland has not responded, the required fee has not been paid and a completed Form F80 has not been received.

1. In relation to an application made pursuant to s.394 of the FW Act, s.395(1) provides that the application “must be accompanied by any fee prescribed by the regulations.” At the time the application was made, the regulations prescribed a fee of $83.30. The regulations also allow for an application to be made for the fee to be waived.

1. 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.

1. In considering all the circumstances, I am satisfied that the relevant application form was not accompanied by the prescribed fee and the application has not been made in accordance with the FW Act. Given the absence of the fee payment, it is likely that there is no valid application before the Commission[1] and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the FW Act. Despite the attempts by the Commission to contact him, the reminders and requests, Mr Marsland has not responded. In these circumstances, I am satisfied that it is appropriate in all the circumstances to dismiss the purported application. An Order[2] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].

[2] PR779031.

Printed by authority of the Commonwealth Government Printer

<PR779030>