Scott Daniel Brenchley v Surepak

[2024] FWC 1327

[2024] FWC 1327

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Scott Daniel Brenchley
v

Surepak

(U2024/4230)

DEPUTY PRESIDENT CLANCY MELBOURNE, 29 MAY 2024

Application for an unfair dismissal remedy

1. On 12 April 2024, Mr Scott Daniel Brenchley made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act).

1. The application was incomplete in that Mr Brenchley did not pay the required application fee, nor lodge a complete Form F80 – Application for waiver of the application fee (Form F80).

1. On 17 April 2024, the Commission emailed correspondence to Mr Brenchley’s nominated email address advising him that payment of the application fee or a completed Form F80 were required if he wished to proceed with his application. That correspondence also warned that, if payment was not made or a waiver form was not received within 14 days, the application may be dismissed. 

1. On 19 April 2024, Mr Brenchley emailed an unsigned Form F80 to the Commission.

1. On 22 April 2024, the Commission attempted to contact Mr Brenchley on his nominated telephone number, however the call was not answered. A voicemail was left requesting that Mr Brenchley provide a completed and signed Form F80. The Commission also emailed correspondence to Mr Brenchley’s nominated email address advising him that the Form F80 was incomplete and that if he wished to proceed with his application, a completed From F80 would need to be submitted. Later that day Mr Brenchley again emailed the Commission, the first email contained only a link to the unsigned Form F80. The second email from Mr Brenchley asked: “What do I need to do.?”. The Commission replied to Mr Brenchley’s email with: “Please sign your Fee Waiver form and return to us or call us on 1300 799 675 to pay the $83.30 filing fee to enable your matter to progress”.

1. On 24 April 2024, the Commission emailed correspondence to Mr Brenchley’s nominated email address reminding him that payment of the application fee or a completed Form F80 were still outstanding. Later that day Mr Brenchley emailed the commission stating “I need the waiver please struggling for money." In response to his email, the Commission attempted to contact Mr Brenchley on his nominated telephone number, however the call was not answered. A voicemail was left advising Mr Brenchley that in order for his fee waiver to be assessed he would need to provide a completed and signed Form F80.

1. On 29 April 2024, a final attempt to contact Mr Brenchley on his nominated telephone number was made by the Commission. The call was not answered, and a voicemail message was left advising Mr Brenchley that a completed Form F80 or payment of the application fee was still outstanding and that his matter would likely be dismissed if not received by the end of the day. To date Mr Brenchley has not paid the required fee or completed a Form F80.

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.

1. 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 reminders and multiple requests, Mr Brenchley has not paid the application fee, nor provided a completed Form F80. In these circumstances, I am satisfied that it is appropriate 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] PR775193

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<PR775192>