Nathan Usher v Dui-Ano Homes Pty Ltd

[2020] FWC 2107

[2020] FWC 2107

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nathan Usher
v
DUI-ANO Homes Pty Ltd
(U2020/2751)

COMMISSIONER BISSETT MELBOURNE, 24 APRIL 2020

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

[1] On 7 March 2020, Mr Nathan Usher made an application to the Fair Work Commission for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act).

[2] Mr Usher did not pay the required fee or file a completed waiver form.

[3] On 11 March 2020 the Commission attempted to telephone Mr Usher on his nominated telephone number to discuss payment. Mr Usher did not answer the call and a voicemail message was left requesting a return call. Mr Usher failed to return the Commission’s call.

[4] Later that same day the Commission sent email correspondence to Mr Usher’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 his application. The correspondence also warned that if he did not pay the application fee or make an application to have the fee waived within 14 days his application may be dismissed. Mr Usher did not respond.

[5] On 24 March 2020 Mr Usher wrote to the Commission stating that “I’ve tried to call a few times to pay the fee but it never goes through. And it’s been over 14 days now since this email and I need to pay it so it can be lodged”. In response to the Commission attempted to contact Mr Usher on his nominated telephone to discuss his correspondence however the call went unanswered. A voicemail message was left requesting Mr Usher to call the Commission.

[6] On 3 April 2020 the Commission made a final attempt to contact Mr Usher on his nominated telephone number to discuss payment. Mr Usher did not answer the call. A voicemail message was left advising Mr Usher that if payment was not made by 6 April 2020 his matter may be dismissed. Mr Usher was urged to contact the Commission. Mr Usher did not return the Commission’s call.

[7] To date payment of the required fee has not been made and no fee waiver form has been received.

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

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.

[9] Section 587(1) of the FW Act 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 prospects of success.

[10] Having regard to the circumstances of this matter, I am satisfied that as the application was not accompanied by the fee prescribed by the Act, the application was not made in accordance with the Act. As such, the application is dismissed pursuant to s.587(1)(a) of the Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

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