Michael William Marks v Caleb Shaw Summary

[2023] FWC 1628

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Michael William Marks
v

Caleb Shaw

(U2023/4290)

COMMISSIONER BISSETT

MELBOURNE, 6 JULY 2023

Application for an unfair dismissal remedy

On 18 May 2023 Mr Michael William Marks 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 Marks did not pay the required fee or file a completed waiver form.

On 23 May 2023, the Commission emailed correspondence to Mr Marks’ nominated email address advising that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application. That correspondence also warned that if the payment is not made or a waiver form is not received within 7 calendar days, the application may be dismissed.

On 30 May 2023, the Commission emailed correspondence to Mr Marks’ nominated email address reminding him 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, the application may be dismissed.

A final attempt to contact Mr Marks on his nominated telephone number was made by the Commission on 26 June 2023 to obtain payment or a completed waiver form. The call was not answered. A voice message was left requesting that Mr Marks contact the Commission as his application was at risk of being dismissed.

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

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

In the Fair Work Commission, Mr Michael William Marks lodged an application for an unfair dismissal remedy against Caleb Shaw, pursuant to section 394 of the Fair Work Act 2009. Mr Marks contended that his dismissal was unfair, however, his application was incomplete as he failed to pay the required fee or submit a completed waiver form. The Commission attempted to contact Mr Marks on several occasions to notify him of the deficiencies in his application and warn him of the potential consequences if he did not rectify them. Despite these efforts, Mr Marks did not respond, pay the fee or submit the waiver form.

The central legal issues before the Commission were whether the application complied with the statutory requirements under the Fair Work Act and, if not, whether the application could be dismissed. The Commission considered the provisions of section 395 of the Fair Work Act, which mandates that applications must be accompanied by the prescribed fee, and section 587(1)(a), which permits the dismissal of applications not made in accordance with the Act. Given that Mr Marks' application was not accompanied by the requisite fee and he failed to respond to multiple attempts by the Commission to rectify this, the Commission was satisfied that the application did not comply with the statutory requirements.

In light of the above, the Commission dismissed Mr Marks' application for an unfair dismissal remedy pursuant to section 587(1)(a) of the Fair Work Act. The application was not made in accordance with the Act as it was not accompanied by the prescribed fee. The Commission found that there were no grounds to waive the fee or excuse Mr Marks' failure to pay it or submit a waiver form. The application was therefore dismissed.

Michael William Marks v Caleb Shaw

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established