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

Printed by authority of the Commonwealth Government Printer

The application by Mr Timothy Elliott against Cleanaway Operations Pty Ltd, trading as Cleanaway, for relief from an unfair dismissal decision was dismissed by the Fair Work Commission. Mr Elliott had previously been dismissed by Cleanaway and sought to challenge this dismissal on the grounds of unfairness. The primary issue before the Commission was whether the application could proceed despite Mr Elliott's failure to pay the required application fee. Additionally, the Commission considered whether Mr Elliott's responses to correspondence from the Commission were adequate to warrant further consideration of his application.

The Commission found that Mr Elliott had not complied with the requirement to pay the application fee, which is a mandatory precondition for lodging an application for relief from an unfair dismissal. Despite this, the Commission examined Mr Elliott's submissions to determine if they were sufficiently responsive to the issues raised by Cleanaway. The Commission concluded that Mr Elliott's responses were inadequate, as they did not directly address the core issues of the application or the concerns raised by Cleanaway regarding the fairness of the dismissal.

Given the non-payment of the application fee and the insufficiency of Mr Elliott's responses, the Commission dismissed the application for relief from the unfair dismissal decision. The Commission held that the procedural requirements for lodging an application must be strictly adhered to, and the failure to meet these requirements justified the dismissal of the application. As a result, the application was dismissed, and no further action will be taken regarding Mr Elliott's claim for relief from the dismissal.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established