Malcholm Brookes v Northstate Woodwork Company Pty Ltd

[2018] FWC 2614

[2018] FWC 2614

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Malcholm Brookes
v
Northstate Woodwork Company Pty Ltd
(U2018/4018)

DEPUTY PRESIDENT CLANCY MELBOURNE, 10 MAY 2018

Application for an unfair dismissal remedy.

[1] On 17 April 2018, Mr Malcholm Brookes made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Brookes filed an application for fee waiver, however the form was incomplete.

[3] On 19 April 2018, the Fair Work Commission telephoned Mr Brookes and advised the application for fee waiver was incomplete. Mr Brookes was told how to locate the application form on the Commission’s website and he advised he would submit it that afternoon. Following the phone call, an email was sent to Mr Brookes which confirmed the telephone discussion and further noted that if the fee was not paid or an application for fee waiver was not filed within 14 days, his application may be dismissed.

[4] On 30 April 2018, a further telephone call was made to Mr Brookes regarding the outstanding application fee. Mr Brookes advised he had had trouble with his computer and had lost the documents he completed. Mr Brookes was again talked through the process of downloading a new application for fee waiver and was given the email address he would need to send it to. Mr Brookes was advised if the application for fee waiver was not received or the fee remained unpaid, his application was at risk of being dismissed.

[5] On 8 May and 9 May 2018, two further attempts to contact Mr Brookes were made, however there was no answer and no option to leave a voicemail. The Commission’s telephone number was sent as a text message on each occasion.

[6] 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.

[7] 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.

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

DEPUTY PRESIDENT

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