Mitchell Thompson v Commercial Club Albury Pty Ltd

[2022] FWC 2787

[2022] FWC 2787

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mitchell Thompson
v

Commercial Club Albury Pty Ltd

(U2022/9609)

COMMISSIONER BISSETT MELBOURNE, 18 OCTOBER 2022

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

1. On 28 September 2022 Mr Mitchell Thompson 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. On 2 October 2022 the Commission emailed correspondence to Mr Thompson’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 is not made or a waiver form is not received within 7 calendar days, the application may be dismissed.

1. On 3 October 2022 an SMS notification was sent to Mr Thompson’s nominated telephone number, advising him to action the payment request email from the Fair Work Commission.

1. On 10 October 2022 the Commission emailed correspondence to Mr Thompson’s nominated email address reminding him that the 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, the application may be dismissed. 

1. On 13 October 2022 the Commission made a final attempt to contact Mr Thompson on his nominated telephone number to obtain payment or a completed waiver form. The call was not answered. A voicemail message was left advising Mr Thompson that payment of the required fee was still outstanding. Mr Thompson was encouraged to pay the fee or advise the Commission of a discontinuance by close of business 13 October 2022. Otherwise, the matter would be at risk of dismissal.

1. To date there has been no response from Mr Thompson, 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 prospect 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 shortly.

COMMISSIONER

[1] PR746935

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