Mr Timothy Elliott v Cleanaway Operations Pty Ltd T/A Cleanaway

[2018] FWC 2178

[2018] FWC 2178

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Mr Timothy Elliott
v
Cleanaway Operations Pty Ltd T/A Cleanaway
(U2018/2861)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 17 APRIL 2018

Application for relief from unfair dismissal – required fee not paid – non-responsive applicant – application dismissed

[1] On 19 March 2018, Mr Timothy Elliott made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (FW Act).

[2] Mr Elliott did not pay the required fee.

[3] Section 395 of the FW Act, which deals with application fees, provides:

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.

[4] On 20 March 2018, the Fair Work Commission (the Commission) attempted to contact Mr Elliott by telephone but was unsuccessful.

[5] On 21 March 2018, an email was sent to Mr Elliott and to his representative, Mr Matt Burnell of the Transport Workers’ Union of Australia-South Australian/Northern Territory Branch, requesting Mr Elliott to contact the Commission to arrange payment of the fee or lodge a waiver form. Mr Burnell advised the Commission by telephone that Mr Elliott could not be contacted because of the recent cyclone in the Northern Territory.

[6] On 23 March 2018, Mr Elliott was advised by letter and email correspondence that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application.

[7] On 4 April 2018, the Commission attempted to contact Mr Elliott by telephone but was unsuccessful. The Commission did contact Mr Burnell by telephone. Mr Burnell advised he will attempt to contact Mr Elliott to pay the required fee.

[8] On 10 April 2018, the Commission attempted to contact Mr Elliott by telephone but was unsuccessful. An email was sent to Mr Elliott and Mr Burnell requesting they contact the Commission.

[9] On 12 April 2018, the Commission attempted to contact Mr Elliott by telephone but was unsuccessful. The Commission did contact Mr Burnell by telephone and informed him of the unsuccessful attempts to contact Mr Elliott.

[10] No response was received from Mr Elliott and payment of the required fee has not been made.

[11] Section 587(1) of the 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.

[12] 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 section 587(1)(a) of the FW Act. An Order to this effect will be issued.

DEPUTY PRESIDENT

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