Joseph Kanowski v BM Payroll Pty Ltd Summary

[2025] FWC 1084

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s 394—Unfair dismissal

Joseph Kanowski
v

BM Payroll Pty Ltd

(U2025/2104)

DEPUTY PRESIDENT BEAUMONT

PERTH, 16 APRIL 2025

Application for an unfair dismissal remedy – application fee not paid or waived – application not made in accordance with the Act - application dismissed.

On 24 February 2025, Mr Joseph Kanowski (the Applicant) made an unfair dismissal application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act).

The Applicant’s application was not made in accordance with the Act (per s 587(1)(a)) because the prescribed fee (per s 373) has not been paid or waived. Section 587(1)(a) allows the Commission to dismiss an application without conducting a hearing, so long as the applicant has been afforded procedural fairness.

Commission staff contacted the Applicant concerning the need to pay the application fee or apply for a waiver on the following dates:

· 27 February 2025 by email;
· 28 February 2025 by SMS;
· 5 March 2025 by email;
· 7 March 2025 by telephone;
· 25 March 2025 by email and SMS; and
· 11 April 2025 by email and SMS.

The Applicant has been on notice since 5 March 2025 of the likely consequences for his application if he did not pay the application fee or seek a waiver. In emails from the Deputy President’s Chambers dated 25 March 2025 and 11 April 2025, the Applicant was directed to pay the application fee, apply for a waiver, or make any submissions he wished to make as to why his application should not be dismissed.

To date, there has been no response from the Applicant to the Commission’s directions and attempts to contact him.

The Applicant has had ample opportunity to rectify the deficiency in the application and to show why his application should not be dismissed under s 587 of the Act (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [15]-[16] and the cases cited therein).

I have decided to dismiss the Applicant’s unfair dismissal application using the power available under s 587(1)(a) of the Act and make the following order:

A.The application under s 394 of the Fair Work Act 2009 (Cth) made by Mr Joseph Kanowski on 24 February 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an unfair dismissal application by Joseph Kanowski against BM Payroll Pty Ltd. Mr Kanowski filed his application under section 394 of the Fair Work Act 2009, alleging unfair dismissal by his former employer. The primary issue before the Commission was whether Mr Kanowski's application could proceed given that he had not paid the requisite application fee or obtained a waiver as required by section 373 of the Act. Under section 587(1)(a) of the Act, the Commission has the authority to dismiss an application if it is not made in accordance with the Act, which includes the failure to pay the prescribed fee or secure a waiver.

The Commission's records showed multiple attempts to contact Mr Kanowski, alerting him to the necessity of paying the fee or applying for a waiver. These communications occurred via email and SMS on several dates, culminating in a direct instruction to respond by 11 April 2025. Despite these efforts, Mr Kanowski did not address the issue of the fee or waiver. The Commission found that Mr Kanowski had been fully informed of the potential consequences of his inaction since 5 March 2025 and had been given multiple opportunities to rectify the situation. Given the clear statutory requirements and the lack of response from Mr Kanowski, the Commission exercised its power under section 587(1)(a) to dismiss the application without a hearing.

The Fair Work Commission, therefore, dismissed Mr Kanowski's unfair dismissal application for non-compliance with the Act. The dismissal order was issued under section 587(1)(a) of the Fair Work Act 2009, reflecting the Commission's adherence to procedural fairness while enforcing the statutory requirements. The final order stated that the application made by Mr Joseph Kanowski on 24 February 2025 was dismissed.

Joseph Kanowski v BM Payroll Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established