Mitchell Peel v Mark Petherick Bricklaying

[2020] FWC 4175

[2020] FWC 4175

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mitchell Peel
v
Mark Petherick Bricklaying
(U2020/9961)

COMMISSIONER BISSETT MELBOURNE, 7 AUGUST 2020

Application for an unfair dismissal remedy.

[1] On 21 July 2020, Mr Mitchell Peel 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).

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

[3] On 22 July 2020 the Commission attempted to contact Mr Peel on his nominated telephone number to discuss payment of the required fee however, Mr Peel did not answer the call. A voicemail message was left requesting Mr Peel to contact the Commission to pay the required fee.

[4] Later that day, the Commission emailed correspondence to Mr Peel’s 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 14 days, the application may be dismissed.

[5] On 24 July 2020 Mr Peel called the Commission and attempted to make payment, however this was unsuccessful. Mr Peel advised he would call the Commission back later that day to make the payment. The Commission’s records indicate that Mr Peel did not call back.

[6] A final attempt to contact Mr Peel was made by the Commission on 4 August 2020 to obtain payment or a completed waiver form. The call was not answered, and a voicemail message was left advising Mr Peel that payment of the required fee was still outstanding.

[7] To date the required fee has not been paid and a completed waiver form has not been received.

[8] 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.

[9] 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.

[10] 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 shortly.

COMMISSIONER

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