Michael Butters v Wyndham Resort Seven Mile Beach T/A Wyndham Vacation Resorts Asia Pacific

[2017] FWC 5571

[2017] FWC 5571

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Butters
v
Wyndham Resort Seven Mile Beach T/A Wyndham Vacation Resorts Asia Pacific
(U2017/9362)

DEPUTY PRESIDENT CLANCY MELBOURNE, 26 OCTOBER 2017

Application for an unfair dismissal remedy.

[1] On 29 August 2017, Mr Michael Butters made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] The application form filed by Mr Butters in the Fair Work Commission was incomplete as he did not provide details about the date he began working for his employer or the date he was notified of his dismissal. Further, Mr Butters filed an application for fee waiver, however, that form was blank.

[3] On 30 August 2017, the Commission attempted to telephone Mr Butters in relation to his incomplete application and the blank fee waiver form, however, this was unsuccessful and a voicemail message was left seeking a return call. On the same day, correspondence was sent to Mr Butters, confirming the fee waiver form was blank and that his application for unfair dismissal remedy was also incomplete. Mr Butters was asked to complete these details and return the forms to the Commission. It was noted in the absence of any advice from him within 14 days, his application may be dismissed.

[4] On 18 September 2017, the Commission again telephoned Mr Butters as no material had been received. Mr Butters advised he wished to proceed with his application and would forward the completed documentation to the Commission by close of business that day. No material was received by the Commission that day.

[5] On 3 October and 10 October 2017, further attempts to contact Mr Butters via telephone were made and on each occasion a voicemail message was left seeking a return call.

[6] To date, no response from Mr Butters has been received and the completed documents have not been filed.

[7] 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.

[8] 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.

[9] Having regard to the above, Mr Butters has failed to file a completed application and did not pay the required fee. I am satisfied 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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