Mr Zachariah Sullivan v Excel Lockers

[2019] FWC 4152

[2019] FWC 4152

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Zachariah Sullivan
v
Excel Lockers
(U2019/3334)

DEPUTY PRESIDENT CLANCY MELBOURNE, 17 JUNE 2019

Application for an unfair dismissal remedy.

[1] On 25 March 2019, Mr Zachariah Sullivan made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Sullivan did not pay the required application fee.

[3] On 26 March 2019, the Commission attempted to telephone Mr Sullivan to seek payment of the fee. This was unsuccessful and a voicemail message was left seeking a return call. On the same day, email correspondence was sent to Mr Sullivan which advised that he could apply to have the application fee waived if paying the fee would cause him serious hardship. It was noted that if he did not pay the fee or apply to have the fee waived within 14 days, his application may be dismissed.

[4] On 11 April 2019, a second attempt to telephone Mr Sullivan was made and a voicemail message was left seeking his return call.

[5] A third telephone call was made to Mr Sullivan on 10 May 2019. Mr Sullivan advised that he would pay the application fee in person at the Fair Work Commission’s Brisbane Registry.

[6] A fourth telephone call was made to Mr Sullivan on 17 May 2019. Mr Sullivan was advised that if he was unable to pay the application fee he could complete a fee waiver application and returned the application to the Commission as soon as possible.

[7] On 27 May and 7 June 2019, two further and final call attempts to Mr Sullivan were made, on each occasion a voicemail message was left seeking his return call.

[8] To date, neither payment of the application fee nor a completed application for fee waiver has been received by the Commission.

[9] Section 395 of the 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.”

[10] 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.”

[11] Having regard to the above, I am satisfied the application was not made in accordance with the Act as Mr Sullivan has not paid the required application fee nor been granted a fee waiver. As such, Mr Sullivan’s application is dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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