Paul McKinlay v Patties Food Group

[2024] FWC 3384

[2024] FWC 3384

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Paul McKinlay
v

Patties Food Group

(U2024/11043)

DEPUTY PRESIDENT CLANCY MELBOURNE, 4 DECEMBER 2024

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

1. Mr Paul McKinlay lodged an unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy on 17 September 2024.

1. The application was incomplete in that Mr McKinlay did not pay the required application fee or lodge a completed Form F80 – Application for waiver of the application fee (Form F80).

1. On 20 September 2024, the Commission contacted Mr McKinlay on his nominated telephone number to discuss his incomplete Form F80. The call was answered, and Mr McKinlay was informed that the application fee remained outstanding and that he could either make payment or lodge a completed Form F80 for consideration.

1. On 23 September 2024 and 26 September 2024, the Commission attempted to contact Mr McKinlay on his nominated telephone number to discuss his incomplete Form F80. The calls were not answered, and voicemails were left requesting Mr McKinlay to urgently contact the Commission.

1. On 26 September 2024, Mr McKinlay informed the Commission by telephone that he wished to proceed with his application. Mr McKinlay was informed that the Form F80 he lodged was incomplete and that he could lodge a complete Form F80 for consideration.

1. On 17 October 2024, the Commission emailed correspondence to Mr McKinlay’s nominated email address informing him that his Form F80 was incomplete. The correspondence informed him that payment of the application fee or a completed Form F80 was required for the Commission to progress his unfair dismissal application. That correspondence warned Mr McKinlay that if payment was not made or a Form F80 was not received by Tuesday, 22 October 2024, his unfair dismissal application may be dismissed.

1. Later that same day, the Commission sent a SMS to Mr McKinlay’s nominated telephone number requesting him to contact the Commission in relation to a problem with his unfair dismissal application.

1. On 18 October 2024, the Commission received a phone call from Mr McKinlay who confirmed he had received the correspondence dated 17 October 2024. Mr McKinlay was provided guidance on how to access the Form F80. Mr McKinlay was warned that if payment was not made or a Form F80 was not received by 31 October 2024 for consideration, his unfair dismissal application may be dismissed without further notice.

1. A final attempt to contact Mr McKinlay was made by the Commission by telephone on 4 November 2024 to follow up on the outstanding application fee. Mr McKinlay could not be reached, and a voicemail message was left requesting Mr McKinlay to contact the Commission in relation to his incomplete Form F80.

1. To date, there has been no response from Mr McKinlay, the required fee has not been paid and a completed Form F80 has not been received.

1. Section 395 of the Act, which deals with application fees, provides as follows:

“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.” (bold text in the original)

1. In relation to an application made pursuant to s.394 of the Act, s.395(1) relevantly provides that the application “must be accompanied by any fee prescribed by the regulations.” Regulation 3.07 of the Fair Work Regulations 2009 (Cth) sets out the amount of the fee for making an unfair dismissal application.

1. Section 587 of the Act relevantly 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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A.

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.” (bold text in the original)

1. The material before the Commission indicates that the relevant application form was not accompanied by the prescribed fee and that Mr McKinlay has not lodged a completed Form F80. I am satisfied that 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 and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. Despite the attempts by the Commission to contact and provide information to Mr McKinlay, there has been no response. In these circumstances, I am satisfied that it is appropriate in all the circumstances to dismiss the purported application. An order[1] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] PR782053.

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