Kelvin Baldwin v Kevin Heggen

[2024] FWC 1406

[2024] FWC 1406

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kelvin Baldwin
v

Kevin Heggen

(U2024/3784)

DEPUTY PRESIDENT CLANCY MELBOURNE, 29 MAY 2024

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

1. On 2 April 2024, Mr Kelvin Baldwin made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act).

1. The Form F2 – Unfair Dismissal Application (Form F2) filed by Mr Baldwin was incomplete in that a page was missing such that no method of service was provided for the Respondent or Mr Baldwin. In addition, the Form F80 – Application for waiver of the application fee (Form F80) was incomplete.

1. On 9 April 2024, the Commission contacted Mr Baldwin on his nominated telephone number to request the missing details. The Commission advised Mr Baldwin and his nominated Representative, Ms Tracy Russell, that information was outstanding, including the first page of the F2 Form, a completed F80 Form, Respondent business name and contact details and email contact details for all parties. Service details for Mr Baldwin were provided, but Mr Baldwin was unable to provide the required information about the Respondent. Mr Baldwin’s Representative advised that they were experiencing difficulties with the forms but undertook to provide the completed application and Fee Waiver forms.

1. Later that day, the Commission emailed correspondence to Mr Baldwin’s nominated email address confirming that the application was incomplete and that the Respondent’s business name, address and email and full contact details for him and his Representative were required. That correspondence also confirmed that the Form F80 was also incomplete. It advised that the Commission could not progress Mr Baldwin’s case until either the application fee, or a completed Form F80 were received. The correspondence also advised that if the Commission did not receive the completed application by Tuesday, 23 April 2024, Mr Baldwin’s case would very likely be dismissed. 

1. As the required information was not received, on 22 April 2024 the Commission attempted to contact Mr Baldwin on his nominated telephone number. A voicemail message was left requesting he urgently contact the Commission.

1. On 26 April 2024, the Commission attempted to contact Mr Baldwin’s Representative on her nominated telephone number. A voicemail message was left requesting she make urgent contact regarding the incomplete application.

1. On that same day, the Commission contacted Mr Baldwin on his nominated telephone number. The urgent need for the completed forms was discussed. Mr Baldwin indicated that he would call back later that day to provide further information. The Commission suggested various options for assistance with the forms, including legal assistance and assistance from a library. The call was discontinued by Mr Baldwin before any further information could be provided.

1. On 1 May 2024, a further attempt was made to contact Mr Baldwin’s Representative on her nominated telephone number. A voicemail was left requesting urgent contact regarding incomplete information. The voicemail also advised that if no contact was received by Friday 3 May 2024 the matter may be dismissed.

1. On that same day, a final follow-up call was made to Mr Baldwin on his nominated telephone number. A voicemail was left requesting that Mr Baldwin urgently contact the Commission. The voicemail also advised that contact was required by close of business Friday 3 May 2024 or the matter may be dismissed.

1. To date, Mr Baldwin has not provided the required information, nor made any further contact with the Commission. The application fee has not paid nor has the Commission received a completed a Form F80.

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 of the 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 prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

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 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 Act. Despite the reminders, Mr Baldwin has not paid the application fee nor submitted a completed Form F80, nor provided the missing information in his Form F2.

1. In these circumstances, I am satisfied that it is appropriate 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] PR775454.

Printed by authority of the Commonwealth Government Printer

<PR775452>