Mr James Scott v Changed Latitude Civil Pty. Ltd

[2024] FWC 1632

[2024] FWC 1632

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mr James Scott
v

Changed Latitude Civil Pty. Ltd.

(U2024/4360)

DEPUTY PRESIDENT CLANCY MELBOURNE, 8 AUGUST 2024

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

1. Mr James Scott lodged an unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on 16 April 2024.

1. The application was incomplete in that Mr Scott did not pay the required fee nor lodge a complete Form F80 – Application for waiver of the application fee (Form F80). 

1. On 22 April 2024, the Commission attempted to contact Mr Scott on his nominated telephone number to discuss the incomplete Form F80 and payment of the required application fee. The call was not answered and a voicemail message was left requesting Mr Scott to provide a signed Form F80.

1. Later that day, the Commission emailed correspondence to Mr Scott’s nominated email address informing him that his Form F80 was incomplete. The correspondence directed Mr Scott to lodge a complete Form F80 in the Commission within 14 days or pay the application fee if he wished to proceed with his application. The correspondence warned Mr Scott that if the Commission did not receive Mr Scott’s completed application within 14 calendar days, his case might be dismissed.

1. On 2 May 2024, the Commission emailed correspondence to Mr Scott’s nominated email address informing him that his application required payment of the application fee or lodgement of a complete Form F80 in the Commission if he wished to proceed with the application. That correspondence also warned that if payment of the application fee was not made to the Commission within 7 calendar days, Mr Scott’s application might be dismissed.

1. On 3 May 2024, a SMS notification was also sent to Mr Scott’s nominated telephone number requesting him to action the payment request email from the Commission. 

1. On 8 May 2024, the Commission emailed correspondence to Mr Scott’s nominated email address informing him that the Commission had not received payment of the application fee from him and that the Commission cannot progress his application until it receives it. The email correspondence informed Mr Scott to pay the application fee or lodge a complete Form F80 form in the Commission and that, otherwise, his application might be dismissed.

1. A final attempt to follow-up with Mr Scott was made by the Commission on 14 May 2024. The telephone call to Mr Scott’s nominated telephone contact number was not answered and a voicemail message was left requesting Mr Scott to urgently contact the Commission.

1. There was no response from Mr Scott to the email correspondence, SMS notification or phone calls, to date the required application fee has not been paid and nor has a complete Form F80 been received.

1. Section 395 of the 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.” (bold text in the original)

1. In relation to an application made pursuant to s.394 of the Act, s.395(1) relevantly provides that the application “must be accompanied by any fee prescribed by the regulations”. Regulation 3.07 of the Fair Work Regulations 2009 (Cth) sets out the amount of the fee for making an unfair dismissal application.

1. Section 587 of the Act relevantly 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.

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.” (bold text in the original)

1. The material before the Commission indicates that Mr Scott has not satisfied the requirement of lodging a complete Form F80 and, given the absence of the application fee payment, it is likely that there is no valid application before the Commission and no further action is required. I am satisfied that his application has not been made in accordance with the Act. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. Despite the attempts by the Commission to contact him, the reminders and multiple requests, Mr Scott has not responded. In these circumstances, I am satisfied that it is appropriate to dismiss the purported application. An order to this effect will be issued with this decision. [1]  

DEPUTY PRESIDENT

[1] PR776293.

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<PR776294>