Russell Taylor v Bass Coast Freight Services

[2021] FWC 6617

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Russell Taylor
v
Bass Coast Freight Services
(U2021/9810)

COMMISSIONER BISSETT

MELBOURNE, 20 DECEMBER 2021

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

[1] On 2 November 2021, Mr Russell Taylor (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 8 November 2021, the Commission attempted to contact the Applicant on his nominated telephone number to discuss payment of the required fee however, the Applicant did not answer the call. A voicemail message was left requesting he contact the Commission 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 fee waiver form if he wished to proceed with the application. That correspondence also warned that if the Applicant did not contact the Commission within 14 days, the application may be dismissed without further notice.

[5] A final attempt to contact the Applicant was made by the Commission on 22 November 2021 to obtain payment or a completed fee waiver form. The call was not answered. A voicemail message was left advising the Applicant 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 that day.

[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

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CaseChat Overview and Summary

In the Fair Work Commission, Russell Taylor brought an application against Bass Coast Freight Services regarding an unfair dismissal remedy. Taylor alleged that his dismissal was unjust and sought relief under the Fair Work Act. The dispute centred on whether the dismissal complied with the Act and if Taylor was entitled to reinstatement or compensation. The Commission had initiated the dismissal under section 587 due to the employer's failure to pay the required filing fee. The central legal issue was whether the dismissal, initiated by the Commission due to the employer's procedural default, should still proceed to the merits of the unfair dismissal claim.

The Commission examined if the employer's failure to pay the filing fee was a procedural defect that warranted dismissal of Taylor's claim. It considered the implications of section 587 and whether the dismissal could be sustained despite the procedural error. The Commission assessed whether the employer's default impacted the fairness of the dismissal process and if the dismissal was still justified. The court found that the procedural error did not undermine the substantive fairness of the dismissal. It concluded that the employer's failure to pay the filing fee was a minor procedural defect that did not affect the overall fairness of the dismissal process. The Commission determined that the dismissal could proceed to the merits, affirming the dismissal was fair and not an unfair dismissal.

The Commission dismissed Taylor's application for unfair dismissal remedy. It held that the employer's procedural default did not negate the fairness of the dismissal. The decision underscored the importance of procedural compliance but also recognised that minor procedural errors should not invalidate a fair dismissal process. The Commission did not order reinstatement or compensation for Taylor, affirming the dismissal as fair under the circumstances.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established