Mark Wiggins v BHP WAIO Pty Ltd

[2022] FWC 307

[2022] FWC 307

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mark Wiggins
v

BHP WAIO Pty Ltd

(U2022/604)

DEPUTY PRESIDENT MANSINI MELBOURNE, 18 FEBRUARY 2022

Application for an unfair dismissal remedy – unpaid application – dismissal under s.587 at the Commission’s initiative.

1. On 10 January 2022, Mr Mark Wiggins made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act).

1. The application was incomplete in that Mr Wiggins did not pay the required fee or file a completed waiver form.

1. On 11 January 2022, the Commission attempted to contact Mr Wiggins on his nominated telephone number to discuss payment of the required fee however he did not answer the call. A message was left requesting he contact the Commission to process the filing fee.

1. Subsequently on 11 January 2022, the Commission sent correspondence to Mr Wiggins’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 the application. That correspondence also warned that if payment was not made or application for a waiver was not made within 14 days, by 25 January 2022, the application may be dismissed.

1. On 21 January 2022, the Commission made another attempt to contact Mr Wiggins on his nominated telephone number to discuss the matter however he did not answer the call. A message was left advising Mr Wiggins that payment of the required fee was still outstanding. Mr Wiggins was advised if the Commission did not receive payment or completed waiver application the matter may be dismissed.

1. At the time of this decision, there has been no response to any of the Commission’s attempts at communication with Mr Wiggins, the required fee has not been paid and a completed waiver form has not been received.

1. Section 395 of the 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 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 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[1] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] PR738368.

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<PR738366>