Paul Jones v Aylward Dowling and Wall Pty Ltd

[2025] FWC 44

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Paul Jones
v

Aylward Dowling And Wall Pty Ltd

(U2024/12318)

DEPUTY PRESIDENT BEAUMONT

PERTH, 6 JANUARY 2025

Application for an unfair dismissal remedy – unpaid application fee – application is not made in accordance with this Act – application dismissed under s.587.

On 16 October 2024, Mr Paul Jones made an unfair dismissal application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act).

For the reasons that follow, I am satisfied that Mr Jones’ application has not been made in accordance with the Act and that it is appropriate to dismiss the application.

Section 395 of the Act is in the following terms:

“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.”

Mr Jones’ application was incomplete because Mr Jones did not pay the required fee or file a completed request to waive the fee.

Commission staff contacted Mr Jones on the following dates:

· 21 October 2024 by telephone and email; and
· 7 November 2024 by telephone.

Mr Jones was advised that he must pay the filing fee or apply for a waiver if he wished to proceed with the application. On 21 October 2024, Mr Jones was also warned that the application could be dismissed if the filing fee was not paid by 4 November 2024.

On 7 November 2024, Mr Jones was contacted by telephone and he advised that he was waiting on correspondence to download the waiver form. Commission staff advised that correspondence had been sent on 21 October 2024, and that the matter would be referred to a Member, and may be dismissed, if payment was not received by 8 November 2024.

To date there has been no further response from Mr Jones, no fee paid, no waiver request received, and no confirmation of the Respondent’s details.

Section 587 of the Act includes the following provisions:

“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.

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or
(b) on application.”

Mr Jones’ 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. Section 587 confers a discretion on the Commission to dismiss Mr Jones’ application.

Mr Jones has been given ample opportunity to rectify the deficiency in the application (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [15]-[16] and the cases cited therein). The Commission’s inquiries and warnings have largely been ignored, and Mr Jones has failed to prosecute his case.

In the circumstances, I am satisfied that Mr Jones’ application should be dismissed.

I have separately made an order dismissing the application (PR783027).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Paul Jones v Aylward Dowling and Wall Pty Ltd, the applicant, Mr Paul Jones, made an unfair dismissal application to the Fair Work Commission (FWC) under the Fair Work Act 2009 (Cth). The application was filed on 16 October 2024 and was subsequently dismissed on 6 January 2025 by Deputy President Beaumont. The primary issue before the court was whether the application complied with the procedural requirements of the Act, specifically the requirement to pay an application fee or apply for a waiver. The decision hinged on whether Mr Jones' application was made in accordance with the Act, and if not, whether it was appropriate to dismiss the application.

The Fair Work Act mandates that an application to the FWC must be accompanied by the prescribed fee or a waiver request. Section 395 of the Act explicitly states the necessity for the prescribed fee, while section 587 empowers the FWC to dismiss an application if it is not made in accordance with the Act. Mr Jones' application was incomplete as he neither paid the required fee nor filed a waiver request. Multiple communications were made by the FWC staff to Mr Jones, advising him of the requirement to pay the fee or apply for a waiver and warning of potential dismissal if the fee was not paid by specified dates. Despite these communications and warnings, Mr Jones did not take the necessary steps to rectify the deficiency in his application.

Deputy President Beaumont found that Mr Jones' application was not made in accordance with the Act because the prescribed fee had not been paid or waived. The court exercised its discretion under section 587 to dismiss the application, noting that Mr Jones had been given ample opportunity to address the deficiency but had failed to do so. The decision was made in light of the repeated warnings and the lack of any response from Mr Jones. Consequently, the court dismissed the application, and an order to that effect was issued.

The final orders included the dismissal of Mr Jones' application under section 587 of the Act for not being made in accordance with the Act. This dismissal was a direct consequence of Mr Jones' failure to comply with the procedural requirements by either paying the application fee or applying for a waiver. The decision underscores the importance of adhering to the procedural mandates of the Fair Work Act when lodging an application with the FWC.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established