Mark Brassington v Universal Bearings

[2019] FWC 5172

[2019] FWC 5172

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Brassington
v
Universal Bearings
(U2019/7014)

DEPUTY PRESIDENT CLANCY MELBOURNE, 29 JULY 2019

Application for an unfair dismissal remedy.

[1] On 25 June 2019, Mr Mark Brassington 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 Brassington did not pay the required application fee.

[3] On 26 June 2019, the Commission contacted Mr Brassington on his nominated telephone number, seeking payment of the required fee. Mr Brassington advised that he wanted to discuss whether he wanted to proceed with his application with his solicitor and that he would return the call to the Commission on the following day.

[4] On 27 June 2019, Mr Brassington’s representative sent correspondence to the Commission by way of email. The email contained a duplicate copy of Mr Barrington’s Form F2 – Unfair dismissal application (Form F2) and supporting materials, which were originally lodged on 25 June 2019. The email on 27 June 2019 also provided a copy of the “Application Fee” form, which was not lodged with the original application. This form identified that Mr Brassington would be the person making payment but did not provide details on how the payment would be made.

[5] Email correspondence was sent to Mr Brassington on 1 July 2019 to his nominated email address regarding the overdue application fee. This correspondence advised Mr Brassington that he could apply to have the fee waived if paying the fee would cause him serious hardship. It was also conveyed that if Mr Brassington did not pay the fee or apply to have the fee waived within 14 days, his application may be dismissed. There was no response from Mr Brassington to this correspondence.

[6] The Commission telephoned Mr Brassington on 4 July 2019. Another person answered the call on Mr Brassington’s behalf so a message was left by the Commission with this person requesting Mr Brassington to return the Commission’s call.

[7] On 22 July 2019, the Commission made a final attempt to telephone Mr Brassington. The telephone call was again answered by another person who offered to pass on a message. The Commission provided a direct telephone number and requested Mr Brassington returned the call within the following two hours.

[8] To date, there still has been no response from Mr Brassington and neither payment of the application fee nor application for a fee waive have 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 Brassington has not paid the required application fee. As such, Mr Brassington’s 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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