Raymond Russell v Plastering Supplies Tasmania

[2023] FWC 3153

[2023] FWC 3153

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Raymond Russell
v

Plastering Supplies Tasmania

(U2023/9739)

DEPUTY PRESIDENT CLANCY MELBOURNE, 29 NOVEMBER 2023

Application for an unfair dismissal remedy

1. On 6 October 2023, Mr Raymond Russell (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).

1. The application was incomplete in that Mr Russell had not paid the required application fee, nor lodged a complete Form F80 – Application for waiver of the application fee (Form F80).

1. On 11 October 2023 the Commission emailed correspondence to Mr Russell’s nominated email address advising that his application required payment of the application fee or a completed Form F80 if he wished to proceed with the application. That correspondence also warned that if payment was not made or a Form F80 completed within 7 calendar days his application may be dismissed. On 17 October 2023, the Commission emailed correspondence to Mr Russell’s nominated email address, again reminding him that his application required payment of the application fee or a completed Form F80 if he wished to proceed and warning him that his application may be a risk of dismissal.

1. On 31 October 2023, the Commission contacted Mr Russell on his nominated telephone number, in order to obtain payment or a completed Form F80, Mr Russell advised the Commission that he would send in a complete Form F80 by the end of the day.  On 1 November 2023, a final attempt to contact Mr Russell on his nominated telephone number was made by the Commission. A converted voice to text message was left requesting that Mr Russell file the Form F80 which he had indicated he would provide the day prior. To date there has been no response from Mr Russell, the required fee has not been paid nor has a completed Form F80 been received.

1. In relation to an application made pursuant to s.394 of the FW Act, s.395(1) provides that the application “must be accompanied by any fee prescribed by the regulations.” At the time the application was made, the regulations prescribed a fee of $83.30. The regulations also allow for an application to be made for the fee to be waived.

2. 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 prospect of success.

1. In considering all the circumstances, I am satisfied that the relevant application form was not accompanied by the prescribed fee and 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[1] 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 him, the reminders and multiple requests, Mr Russell has ultimately not taken the required action. In these circumstances, I am satisfied that it is appropriate in all the circumstances to dismiss the purported application. An Order[2] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].

[2] PR768826.

Printed by authority of the Commonwealth Government Printer

<PR768825>