Kye Brown v Trio Plumbing (Australia) Pty Ltd
[2025] FWC 3
•9 JANUARY 2025
| [2025] FWC 3 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kye Brown
v
Trio Plumbing (Australia) Pty Ltd
(U2024/11701)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 9 JANUARY 2025 |
Application for an unfair dismissal remedy – dismissal under s.587 at the Commission’s initiative.
Mr Kye Brown lodged an unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on 30 September 2024.
The application was incomplete in that Mr Brown did not pay the required application fee or lodge a completed Form F80 – Application for waiver of the application fee (Form F80).
On 3 October 2024, the Commission emailed correspondence to Mr Brown’s nominated email address informing him that his Form F80 was incomplete. The correspondence informed him that payment of the application fee or a completed Form F80 was required for the Commission to progress his unfair dismissal application. That correspondence warned Mr Brown that if payment was not made or a Form F80 was not received, his unfair dismissal application may be dismissed.
On 11 October 2024 the Commission attempted to contact Mr Brown on his nominated telephone number, however the call was not answered. A voicemail message, converted to text message, was left advising Mr Brown that his Form F80 was incomplete and due by 17 October 2024, and requesting that Mr Brown contact the Commission.
On 21 October 2024, the Commission attempted to contact Mr Brown on his nominated telephone number, however, the call was not answered. A voicemail message, converted to text message, was left requesting that Mr Brown contact the Commission by close of business on 22 October 2024, and warning Mr Brown that his matter was at risk of being dismissed.
On 5 November 2024, the Commission emailed correspondence to Mr Brown’s nominated email address advising him that his Form F80 was incomplete. The correspondence informed him that payment of the application fee or a completed Form F80 was required for the Commission to progress his unfair dismissal application. That correspondence warned Mr Brown that if payment was not made or a Form F80 was not received within 7 calendar days, his unfair dismissal application may be dismissed. An SMS notification was also sent to Mr Brown’s nominated telephone number advising of the requirement to action the payment request email from the Commission.
To date, there has been no response from Mr Brown, the required fee has not been paid and a completed Form F80 has not been received.
Section 395 of the Act, which deals with application fees, provides as follows:
“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.”
In relation to an application made pursuant to s.394 of the Act, s.395(1) relevantly provides that the application “must be accompanied by any fee prescribed by the regulations.” Regulation 3.07 of the Fair Work Regulations 2009 (Cth) sets out the amount of the fee for making an unfair dismissal application.
Section 587 of the Act relevantly 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.
…(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
The material before the Commission indicates that the relevant application form was not accompanied by the prescribed fee and that Mr Brown has not lodged a completed Form F80. I am satisfied that 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, and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. Despite the attempts by the Commission to contact and provide information to Mr Brown, there has been no response. In these circumstances, I am satisfied that it is appropriate in all the circumstances to dismiss the purported application. An order[1] to this effect will be issued with this decision.
DEPUTY PRESIDENT
[1] PR782918.
Printed by authority of the Commonwealth Government Printer
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