Nicholas Shawcross v BHP Nickel West Pty Ltd

[2024] FWC 968

[2024] FWC 968

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Nicholas Shawcross
v

BHP Nickel West Pty Ltd

(U2024/3444)

DEPUTY PRESIDENT CLANCY MELBOURNE, 23 APRIL 2024

Application for an unfair dismissal remedy

1. On 25 March 2024, Mr Nicholas Shawcross made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

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

1. On 28 March 2024, the Commission emailed correspondence to Mr Shawcross’ nominated email address advising him that his application required payment of the application fee or a completed Form F80 if he wished to proceed with his application. That correspondence also warned that if payment was not made or a Form F80 was not received within 7 calendar days his application may be dismissed.

1. On 29 March 2024, the Commission sent an SMS notification to Mr Shawcross’ nominated telephone number advising him of the requirement to action the payment request email from the Fair Work Commission.

1. On 3 April 2024, the Commission emailed correspondence to Mr Shawcross’ nominated email address reminding him that his application required payment of the application fee or a completed Form F80 if he wished to proceed with the application. That correspondence also warned that if payment was not made or Form F80 was not received, his application may be dismissed. 

1. On 4 April 2024, the Commission attempted to contact Mr Shawcross on his nominated telephone number. The call was not answered. A voicemail message was left advising Mr Shawcross to contact the Commission. The Commission then also sent correspondence to Mr Shawcross’ nominated Representative (Employee Dismissals) advising that Mr Shawcross’ application fee was outstanding. The email advised Employee Dismissals that the Commission had been unsuccessful in contacting Mr Shawcross and that his application may be dismissed if payment was not made or a Form F80 was not received.

1. On 8 April 2024, a final attempt to contact the Employee Dismissals was made by the Commission. The call was not answered, and a voicemail message was left referring to the correspondence sent on 4 April 2024 and requesting that contact be made with the Commission. To date there has been no response from the Mr Shawcross, nor from Employee Dismissals, the required fee has not been paid and a Form F80 has not been received.

1. In relation to an application made pursuant to s.394 of the FW Act, s.395(1) provides that the application “must be accompanied by any fee prescribed by the regulations.” At the time the application was made, the regulations prescribed a fee of $83.30. The regulations also allow for an application to be made for the fee to be waived.

1. 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.

1. In considering all the circumstances, I am satisfied that the relevant application form was not accompanied by the prescribed fee and the application has not been made in accordance with the Act. Given the absence of the fee payment, it is likely that there is no valid application before the Commission[1] and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. Despite the numerous attempts by the Commission to contact both Mr Shawcross and Employee Dismissals, the reminders, and multiple requests, neither Mr Shawcross nor Employee Dismissals have responded, and application fee has not been paid. In these circumstances, I am satisfied that it is appropriate to dismiss the purported application. An Order[2] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].

[2] PR773489.

Printed by authority of the Commonwealth Government Printer

<PR773488>