Michael Roberts v McCallum Disability Services

[2022] FWC 3020

[2022] FWC 3020

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Michael Roberts
v

McCallum Disability Services

(U2022/9999)

COMMISSIONER BISSETT HOBART, 15 NOVEMBER 2022

Application for an unfair dismissal remedy – unpaid application – dismissal under s.587 at the Commission’s initiative

1. On 12 October 2022 Mr Michael Roberts 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 Roberts did not pay the required fee or file a completed waiver form. 

1. On 14 October 2022 correspondence was sent to Mr Roberts’ 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 was not made or a waiver form was not received within 7 days, the application may be dismissed. An SMS notification was also sent to Mr Roberts’s nominated telephone number, requesting he contact the Commission.

1. On 17 October 2022 a further SMS notification was sent to Mr Roberts’s nominated telephone number requesting payment.

1. On 25 October 2022 the Commission attempted to contact Mr Roberts on his nominated telephone number. He did not answer. A voicemail was left seeking Mr Roberts to make payment of the application fee or return a completed waiver form.

1. On 27 October 2022 the Commission emailed correspondence to Mr Roberts’s nominated email advising that their application required payment of the filing fee or a completed waiver form if they wished to proceed with the application.

1. A final attempt to contact Mr Roberts was made by the Commission on 2 November 2022 to obtain payment or a completed waiver form. The call was not answered, and a voicemail message was left advising Mr Roberts that payment of the required fee was still outstanding. 

1. To date there has been no response from Mr Roberts, the required fee has not been paid and a completed waiver form has not been received. 

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:

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.

1. 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 with this decision.  

COMMISSIONER

[1] PR747925

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