Matthew Bugdalski v Airmaster

[2021] FWC 121

[2021] FWC 121

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Bugdalski
v
Airmaster
(U2020/15742)

COMMISSIONER BISSETT MELBOURNE, 13 JANUARY 2021

Application for relief from unfair dismissal – incomplete application – dismissal under s.587 at the Commission’s initiative.

[1] On 9 December 2020, Mr Matthew Bugdalski made an application to the Fair Work Commission (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 Bugdalski did not pay the required fee or file a completed waiver form.

[3] On 9 December 2020, the Commission attempted to contact Mr Bugdalski on his nominated telephone number to advise that the waiver he lodged with his application was blank. The Commission advised Mr Bugdalski that he would need to re-send a completed Form F80 if he wished to request the application fee be waived and that a letter will be sent with a blank Form F80 for him to fill in and return to the Commission.

[4] Later that day, the Commission emailed correspondence to Mr Bugdalski’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 is not made or a waiver form is not received within 14 days, the application may be dismissed.

[5] Another telephone call was made to Mr Bugdalski on 16 December 2020 to advise that the waiver had still not been received. Mr Bugdalski said that he had not received any correspondence from the Commission by email. Mr Bugdalski was advised that email correspondence was sent on 9 December 2020 and his email address was confirmed as being correct. It was suggested that Mr Bugdalski check his junk mail and that alternatively, he could download the Form F80 form from the Commission’s website.

[6] Further, in that telephone call Mr Bugdalski was advised that if the waiver or payment is not received by 23 December 2020 his matter may be dismissed. A final attempt to contact Mr Bugdalski was made by the Commission on 6 January 2021 to obtain payment or a completed waiver form. The call was not answered and a voicemail message was left advising Mr Bugdalski that payment of the required fee was still outstanding.

[7] To date there has been no response from Mr Bugdalski, the required fee 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 prospects 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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