Michael Macgregor v Peak Precast Summary

[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

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).

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

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.

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.

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.

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.

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

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.

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.

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

Printed by authority of the Commonwealth Government Printer

The case of Michael Macgregor v Peak Precast was heard by Commissioner Bissett at the Fair Work Commission. Mr Macgregor had filed an application for unfair dismissal against his former employer, Peak Precast, under section 394 of the Fair Work Act 2009. The application was incomplete, as Mr Macgregor had neither paid the required application fee nor submitted a completed waiver form. The Commission subsequently attempted to contact Mr Macgregor multiple times to address these deficiencies, but to no avail. The Commission also contacted Mr Macgregor’s named representative, Mr Andrew Te Moho, who was uncertain about the status of the claim.

The primary legal issue before the Commission was whether Mr Macgregor's application could proceed given the incomplete nature of its submission. Specifically, the Commission needed to determine if the application was made in accordance with the Fair Work Act, or whether it was dismissible under section 587(1)(a) for not being accompanied by the prescribed application fee. Given the clear requirement under section 395 of the FW Act that applications be accompanied by the prescribed fee, and the Commission's repeated attempts to rectify the omission, it was determined that the application did not comply with the Act.

The Commission found that the application was not made in accordance with the FW Act due to the lack of payment of the required fee, thereby triggering the dismissal criteria under section 587(1)(a). Commissioner Bissett concluded that the application was deficient and dismissed it accordingly.

In light of the dismissal, no further orders were made by the Commission. The application for unfair dismissal was dismissed, and no remedy was granted to Mr Macgregor.

Michael Macgregor v Peak Precast

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established