Shane Burke v Westcrest Tools Pty Limited

[2025] FWC 1078

[2025] FWC 1078

The attached document replaces the document previously issued with the above code on 16 April 2025.

A typographical error to the Respondent’s name has been corrected in the parties block.

Associate to Deputy President Beaumont

Dated 16 April 2025

[2025] FWC 1078

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s 394—Unfair dismissal

Shane Burke
v

Westcrest Tools Pty Limited

(U2025/1488)

DEPUTY PRESIDENT BEAUMONT PERTH, 16 APRIL 2025

Application for an unfair dismissal remedy – application fee not paid or waived – application not made in accordance with the Act – application dismissed.

1. On 10 February 2025, Mr Shane Burke (the Applicant) made an unfair dismissal application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act).

1. There were several deficiencies with the Applicant’s application.  These included that the application form did not record a termination date and therefore it was unclear whether the Applicant had made the application within the statutory period (the Applicant stated he had not) and whether he had met the minimum employment period (the Applicant stated that he had served six months but had but provided no further detail).

1. Furthermore, the Applicant’s application was not made in accordance with the Act (per s 587(1)(a)) because the prescribed fee (per s 373) had not been paid or waived. Section 587(1)(a) allows the Commission to dismiss an application without conducting a hearing, so long as the applicant has been afforded procedural fairness.

1. The Applicant applied for a waiver of the application fee using a Form F80 on 10 February 2025, however the form was incomplete.  Commission staff contacted the Applicant concerning this deficiency on the following dates:

·  13 February by telephone and email;

·  12 March by telephone;

·  27 March by email and SMS; and

·  11 April by email and SMS. 

1. The Applicant has been on notice since 13 February 2025 of the likely consequences for his application if he did not pay the application fee or address the deficiencies in his application for a waiver.  Further, in emails from Deputy President Easton’s Chambers dated 27 March 2025 and 11 April 2025, the Applicant was directed to pay the application fee, apply for a waiver, or make any submissions he wished to make as to why his application should not be dismissed by 7 April and 14 April 2025 respectively.

1. To date, there has been no response from the Applicant to the Commission’s directions.

1. The Applicant has thus had ample opportunity to rectify the deficiency in the application and to show why his application should not be dismissed under s 587 of the Act (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [15]-[16] and the cases cited therein).

1. I have decided to dismiss the Applicant’s unfair dismissal application using the power available under s 587(1)(a) of the Act and make the following order:

A.The application under s 394 of the Fair Work Act 2009 (Cth) made by Mr Shane Burke on 10 February 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR786180>