Liam Toal v Mile End Bagels

[2022] FWC 1280

[2022] FWC 1280

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Liam Toal
v

Mile End Bagels

(U2022/5090)

COMMISSIONER O’NEILL MELBOURNE, 25 MAY 2022

Application for relief from unfair dismissal – incomplete application – dismissal under s.587 at the Commission’s initiative.

1. On 5 May 2022, Liam Toal 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 Toal did not pay the required fee or file a completed waiver form. Mr Toal’s application was also incomplete as he had not provided a response to question 1.3 in his application form.

1. On 6 May 2022, the Commission emailed correspondence to Mr Toal’s nominated email address advising that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application. The correspondence also advised Mr Toal of the incomplete question in his application form. That correspondence also warned that if payment is not made or a waiver form is not received within 14 days, the application may be dismissed. 

1. On 11 May 2022 the Commission attempted to contact Mr Toal on his nominated telephone number to discuss payment of the required fee however, he did not answer the call. A voicemail message was left requesting a call back and the outstanding lodgement fee.

1. On 11 May 2022, Mr Toal wrote to the Commission advising that he was having trouble completing his application form as he is unsure how to answer answering question 1.3 of the Form F2 – what date were you notified of your dismissal?

1. A further attempt to contact Mr Toal was made by the Commission on 18 May 2022 to obtain payment or a completed waiver form. The call was not answered, and a voicemail message was left advising him that payment of the required fee was still outstanding. The voice message also requested Mr Toal contact the Commission concerning his query about his notified date of dismissal.

1. To date there has been no response from Mr Toal, the required fee has not been paid and a completed waiver form has not been received.

1. Section 395 of the FW 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.

1. Section 587(1) of the FW 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 prospect of success.

1. Having regard to the circumstances of this matter, I am satisfied that as the application was not accompanied by the fee prescribed by the FW Act, the application was not made in accordance with the FW Act. As such, the application is dismissed pursuant to s.587(1)(a) of the FW Act. An Order to this effect will be issued shortly.

COMMISSIONER

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