Michael Macgregor v Peak Precast

[2023] FWC 228

[2023] FWC 228

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Michael Macgregor
v

Peak Precast

(U2023/88)

COMMISSIONER BISSETT MELBOURNE, 25 JANUARY 2023

Application for an unfair dismissal remedy

1. On 4 January 2023 Mr Michael Macgregor 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).

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

1. On 8 January 2023 the Commission emailed correspondence to Mr Macgregor’s nominated email advising that he had not answered all the questions in his application form and 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.

1. On 9 January 2023 the Commission attempted to contact Mr Macgregor on their nominated telephone number to discuss payment of the required fee however the call was not answered. A voicemail message was left referring Mr Macgregor to the correspondence sent on 8 January.

1. On 20 January 2023 Commission attempted to contact Mr Macgregor on his nominated telephone number to obtain payment or a completed waiver form. The call was not answered and a voicemail message was left advising Mr Macgregor that payment of the required fee was still outstanding.

1. On 23 January 2023 the Commission contacted the Applicant’s named representative, Mr Andrew Te Moho, on his nominated telephone number. Mr Te Moho told the Commission that he was unsure as to whether the Applicant wished to continue his claim and that he had not spoken to Mr Macgregor for some time. Mr Te Moho confirmed to the Commission that the nominated telephone number for Mr Macgregor is correct.

1. To date Mr Macgregor has not paid the required fee or completed a waiver form.

1. 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.

1. Section 587(1) of the FW Act provides as follows:

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. 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.

COMMISSIONER

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