Liam Toal v Mile End Bagels Summary

[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.

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).

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.

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.

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.

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?

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.

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.

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.

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.

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

Printed by authority of the Commonwealth Government Printer

Liam Toal sought relief from the Fair Work Commission (FWC) for unfair dismissal against his employer, Mile End Bagels. The FWC was required to decide whether the application was validly made, given that it was incomplete and did not comply with certain statutory requirements. The primary issue was whether Mr Toal's application could be considered under section 394 of the Fair Work Act 2009 (FW Act), given that it was incomplete in several respects. The Commission noted that Mr Toal failed to pay the requisite application fee and did not complete a required waiver form. Additionally, he did not answer a specific question regarding the date of his dismissal notification. Despite multiple attempts to contact Mr Toal and provide guidance on completing his application, no further action was taken by him.

The FWC considered section 395 of the FW Act, which mandates that an application must be accompanied by a prescribed fee, and section 587(1), which allows the FWC to dismiss an application if it is not made in accordance with the Act. The Commission found that Mr Toal's application did not comply with these statutory requirements, and as such, it was not validly made. Consequently, the application was dismissed under section 587(1)(a) of the FW Act.

The FWC dismissed Mr Toal's application for unfair dismissal as it did not comply with the necessary statutory requirements. The Commission found that the application was incomplete, as it lacked the required fee and waiver form, and it did not address a specific question regarding the date of dismissal notification. The Commission considered these deficiencies to be fundamental and concluded that the application could not proceed. The Commission's decision was based on the statutory provisions and the procedural requirements set out in the FW Act.

Liam Toal v Mile End Bagels

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established