Mathew Fuller v The Trustee for Wayne Cleaning Service Unit Trust T/A Wayne Cleaning Service

[2021] FWC 3922

[2021] FWC 3922

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mathew Fuller
v
The Trustee for Wayne Cleaning Service Unit Trust T/A Wayne Cleaning Service
(U2021/5136)

COMMISSIONER BISSETT MELBOURNE, 9 JULY 2021

Application for an unfair dismissal remedy.

[1] On 12 June 2021 Mr Mathew Fuller 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).

[2] The application was incomplete in that Mr Fuller did not pay the required fee or file a completed waiver form.

[3] On 15 June 2021 the Commission contacted Mr Fuller on his nominated telephone number to discuss payment of the required fee. The Commission advised Mr Fuller that the waiver form was still outstanding as the form he filed was blank.

[4] Later that day the Commission emailed correspondence to Mr Fuller’s nominated email address advising that his application for unfair dismissal 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 or a completed waiver form is not received within 14 days the application may be dismissed. An SMS notification was also sent to Mr Fuller’s nominated telephone number advising that there was a problem with his application and requesting he contact the Commission.

[5] The Commission contacted Mr Fuller again on 15 June 2021 as it was identified that he had made a separate application to the Commission to deal with a contravention involving dismissal under s.365 of the FW Act. The Commission informed Mr Fuller that it is unable to proceed with both applications as s.725–s.733 of the FW Act prevents a person from simultaneously making multiple applications relating to the termination of their employment. The Commission informed Mr Fuller hat he must decide which application he intended to proceed with and inform the Commission of his decision within 14 days or his later application may be dismissed. Correspondence to this effect was also sent to Mr Fuller’s nominated email address that same day.

[6] A final attempt to contact Mr Fuller was made by the Commission on 30 June 2021 to clarify which application he wished to proceed with and obtain payment or a completed waiver form in relation to his unfair dismissal application. The call was not answered. A voicemail message was left advising Mr Fuller that payment of the required fee was still outstanding and to contact the Commission.

[7] To date there has been no response from Mr Fuller, the required fee in relation to his application for unfair dismissal has not been paid and a completed waiver form has not been received.

[8] 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.

[9] 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.

[10] 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 1 to this effect will be issued shortly.

COMMISSIONER

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