Lee Small v St George Motor Boat Club

[2019] FWC 2308

[2019] FWC 2308

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lee Small
v
St George Motor Boat Club
(U2019/1853)

DEPUTY PRESIDENT CLANCY MELBOURNE, 5 APRIL 2019

Application for an unfair dismissal remedy.

[1] On 21 February 2019, Mr Lee Small made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Small did not pay the required application fee.

[3] On 22 February 2019, the Commission telephoned Mr Small to seek payment of the application fee. During this telephone conversation, Mr Small indicated that he wished to apply for a waiver of the application fee so the Commission sent correspondence to Mr Small’s nominated postal address and attached a Form F80 – Waiver of application fee for his completion. The correspondence warned that if Mr Small did not pay the application fee or make an application to have the fee waived within 14 days, his application may be dismissed.

[4] As no response was received from Mr Small after 14 days, the Commission attempted to telephone him on 14 March 2019. Mr Small was unable to be contacted and a detailed voicemail message was left advising that the Commission had not received any application for a fee waiver and warning that if he did not contact the Commission by the next day, his application may be dismissed.

[5] On 25 March 2019, the Commission attempted to telephone Mr Small but was unable to reach him, so a voicemail message was left. Final correspondence was then sent to Mr Small’s nominated postal address advising that if he did not pay the application fee or make an application for a fee waiver, his application may be dismissed.

[6] On 29 March 2019, the Commission telephoned Mr Small. According to the Commission’s records, the telephone call was answered by a person other than Mr Small, who advised that Mr Small was unavailable. The Commission left a message requesting Mr Small’s return call.

[7] On 2 April 2019, the Commission attempted a final telephone call to Mr Small. As there was no answer, a voicemail message was left requesting his return call.

[8] To date, no response from Mr Small has been received and neither payment of the application fee or application for a fee waiver has been made.

[9] Section 395 of the Act, which deals with application fees, provides:

“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.”

[10] Section 587(1) of the Act provides:

“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.”

[11] Having regard to the above, I am satisfied the application was not made in accordance with the Act as Mr Small has not paid the required application fee. As such, Mr Small’s application is dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR706621>