[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

[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

[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

Printed by authority of the Commonwealth Government Printer

1 PR735531

Peter John Noakes lodged an application with the Federal Circuit and Family Court of Australia, seeking an unfair dismissal remedy against his former employer, Cannridge Pty Ltd. The dispute centred on the fairness of his termination and whether the dismissal was unjust or unreasonable. The application was initially dismissed due to Mr Noakes' failure to pay the requisite filing fee, but he subsequently sought to have the dismissal reconsidered by the Commission at its own initiative. The crux of the matter was whether the failure to pay the filing fee should preclude the Court from considering the merits of the unfair dismissal claim.

The primary legal issue before the Court was whether it should exercise its discretion to overlook Mr Noakes' failure to pay the filing fee, allowing the Court to proceed with the substantive application. The Court had to balance Mr Noakes' right to access to justice against the need to ensure that procedural requirements, such as the payment of filing fees, were observed. Additionally, the Court needed to consider whether the dismissal was unfair, as per the provisions of the Fair Work Act 2009, in the context of the Commission’s initiative to review the case.

In deciding the matter, the Court noted that while procedural requirements are important, they should not impede the fundamental right to access justice. The Court found that there were exceptional circumstances justifying the waiver of the filing fee. Mr Noakes had shown a genuine intention to pursue his claim, and the dismissal appeared to raise serious questions regarding its fairness. The Court exercised its discretion under section 587 of the Fair Work Act 2009 to review the case at the Commission's initiative, thereby allowing the substantive application to proceed. The Court concluded that the failure to pay the filing fee should not prevent the merits of the unfair dismissal claim from being considered.

The Court ordered that the application for an unfair dismissal remedy be reconsidered, with the procedural impediment of the unpaid filing fee waived. The case was to be referred back to the Fair Work Commission for further determination on the merits of the unfair dismissal claim. This outcome ensured that Mr Noakes' right to seek justice was upheld, while also acknowledging the importance of procedural compliance in labour matters.

Peter John Noakes v Cannridge Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established