Peter John Noakes v Cannridge Pty Ltd

[2021] FWC 6275

[2021] FWC 6275

The attached document replaces the document previously issued with the above code on 5 November 2021.

The paragraph numbering has been amended.

Lisa Powell
Associate to Commissioner Bissett

Dated 8 November 2021.

[2021] FWC 6275

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter John Noakes
v
Cannridge Pty Ltd
(U2021/9013)

COMMISSIONER BISSETT MELBOURNE, 5 NOVEMBER 2021

Application for an unfair dismissal remedy - failure to pay filing fee - dismissal under s.587 at the Commission’s initiative.

[1] On 12 October 2021, Mr Peter Noakes (Applicant) 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).

[2] The application was incomplete in that the Applicant did not pay the required fee or file a completed fee waiver form.

[3] On 13 October 2021, the Commission contacted the Applicant on his nominated telephone number to discuss payment of the required fee. The Applicant answered the call. He was advised that the Commission requires payment or a completed fee waiver form if he wishes to proceed with the application. The Applicant advised he was not immediately able to pay the filing fee as he did not have his credit card with him but would contact the Commission later to make payment.

[4] Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising that his application required payment of the filing fee or a completed waiver form if he wished to proceed with the application. That correspondence also warned that if payment is not made or a waiver form is not received within 14 days, the application may be dismissed. An SMS notification was also sent to the Applicant’s nominated telephone number, advising that there was a problem with his application and requesting he contact the Commission.

[5] As payment had not been received, a final attempt to contact the Applicant was made by the Commission on 28 October 2021 to obtain payment or a completed fee waiver form. The Applicant did not answer the call. A voicemail message was left advising him that his application was at risk of being dismissed if payment or a completed fee waiver form was not received. He was asked to contact the Commission by no later than close of business on 29 October 2021.

[6] To date there has been no response from the Applicant, the required fee has not been paid and a completed fee waiver form has not been received.

[7] Section 395 of the FW 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.

[8] 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.

[9] Having regard to the circumstances of this matter, I am satisfied that as the application was not accompanied by the fee prescribed by the FW Act, the application was not made in accordance with the FW Act. As such, the application is dismissed pursuant to s.587(1)(a) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

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