Scott Bennett v Resources NSW

[2022] FWC 2784

[2022] FWC 2784

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Scott Bennett
v

Resources NSW

(U2022/9606)

COMMISSIONER BISSETT MELBOURNE, 18 OCTOBER 2022

Application for relief from unfair dismissal – unpaid application – dismissal under s.587 at the Commission’s initiative.

1. On 28 September 2022 Mr Scott Bennett 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, and Mr Bennett did not pay the required fee or file a completed waiver form.

1. On 2 October 2022 the Commission emailed correspondence to Mr Bennett’s nominated email address advising that his application required a correction to the Respondent name. Further to this, payment of the filing fee or a completed waiver form was also required should Mr Bennet want to proceed with the application. That correspondence warned that if payment was not made or a waiver form is not received within 14 days, the application may be dismissed. 

1. On 3 October 2022 another attempt was made to contact Mr Bennett to discuss the respondent’s name and advise that the matter is at risk of being dismissed if this was not corrected. An amended application was received the same day correcting the errors in the respondent’s legal name.

1. On 4 October 2022 Mr Bennett contacted the Commission helpline to advise that he was awaiting an appointment with a law firm through the Commission’s Workplace Advice Service (WAS). That same day, a reminder was sent to Mr Bennett’s nominated email address advising that the application fee needs to be paid or an application to have the fee waived must be submitted, or the application may be dismissed.

1. A final attempt to contact Mr Bennett was made by the Commission on 14 October 2022 to obtain payment or a completed waiver form. The call was not answered, and a voicemail message was left advising Mr Bennett that payment of the required fee was still outstanding.

1. To date there has been no response from Mr Bennett, the required fee has not been paid and a completed waiver form has not been received.

1. 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.

1. Section 587(1) of the FW Act provides:

   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.

2. 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

[1] PR746919

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<PR746918>