| [2025] FWC 2706 |
| FAIR WORK COMMISSION |
| DECISION AND ORDER |
Fair Work Act 2009
s.394—Unfair dismissal
Noelani Masah
v
MN Builders Pty Ltd
(U2025/5124)
| DEPUTY PRESIDENT EASTON | SYDNEY, 11 SEPTEMBER 2025 |
Application for an unfair dismissal remedy – application fee not paid or waived – application not made in accordance with the Act - application dismissed.
On 24 April 2025, Mr Noelani Masah made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).
Mr Masah’s application was not made in accordance with the Act (per s.587(1)(a)) because the prescribed fee (per s.395) has not been paid or waived.
Commission staff attempted to contact Mr Masah on 1 May, 19 May and 2 July 2025 by telephone, SMS and email.
On 19 May 2025 Commission staff spoke with Mr Masah about his incomplete application for a waiver. Commission staff emailed him in relation to the incomplete waiver and advised that a response is required by 20 May 2025.
Mr Masah has been on notice of the likely consequences if he does not provide the completed waiver, or make payment of the prescribed fee, and to date he has not responded.
Section 587 confers a discretion on the Commission to dismiss Mr Masah’s application if it has not been made in accordance with the Act. Mr Masah has had ample opportunity to rectify the deficiency in his application and has had ample opportunity to show why his application should not be dismissed under s.587 (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [15]-[16] and the cases cited therein).
I make the following order:
A.The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Noelani Masah on 24 April 2025 is dismissed.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
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- AGLC
- Noelani Masah v MN Builders Pty Ltd [2025] FWC 2706
- Case
- [2025] FWC 2706
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the application complied with the statutory requirements, particularly concerning the payment of the application fee or the waiver thereof. Section 395 of the Act mandates that a fee be paid for an unfair dismissal application, with provisions for a waiver under certain conditions. Mr Masah's application was incomplete as it did not include the requisite fee payment or a valid waiver. The court considered whether Mr Masah had sufficient opportunity to rectify the deficiency and if there were any grounds to exercise discretion in his favour under section 587.
Deputy President Easton noted that Mr Masah was aware of the necessity to either pay the fee or obtain a waiver and had been given multiple opportunities to address the incomplete application. Despite attempts to contact him via telephone, SMS, and email, Mr Masah did not respond or provide the required information. The court found that Mr Masah had ample opportunity to comply with the statutory requirements and had failed to do so. The decision to dismiss the application was supported by precedent, including the case of Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302, where similar circumstances led to the dismissal of an application for non-compliance.
The Fair Work Commission ordered that the unfair dismissal application made by Mr Noelani Masah on 24 April 2025 be dismissed. This order was made in accordance with section 587(1)(a) of the Fair Work Act 2009 (Cth), reflecting the Commission's discretion to dismiss applications that do not comply with the Act's requirements.
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