Paul Jones v Aylward Dowling and Wall Pty Ltd
[2025] FWC 44
•6 JANUARY 2025
| [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
<PR783026>
0