Shaun Cameron v Macmahon Contractors Pty Ltd

[2022] FWC 2066

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Shaun Cameron
v

Macmahon Contractors Pty Ltd

(U2022/7182)

COMMISSIONER BISSETT

MELBOURNE, 5 AUGUST 2022

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

On 18 July 2022, Mr Shaun Cameron 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).

The application was incomplete in that Mr Cameron did not pay the required fee or file a completed waiver form.

On 18 July 2022, the Commission attempted to contact Mr Cameron on his nominated telephone number to discuss payment of the required fee. The Commission advised him that the fee was still outstanding. Mr Cameron advised he was unable to make payment at the time of the call. The Commission advised a letter would be emailed to him about the fee which provided him 14 days to make payment or provide a completed waiver form. Mr Cameron advised he would contact the Commission to make payment.

Later that day, the Commission emailed correspondence to Mr Cameron’s nominated email address advising that his application required payment of the filing fee or a completed waiver form if he wished to proceed with the application. That correspondence also warned that if payment is not made or a waiver form is not received within 14 days, the application may be dismissed.

A final attempt to contact Mr Cameron was made by the Commission on 2 August 2022 to obtain payment or a completed waiver form. The call was not answered and a voicemail message was left advising him that payment of the required fee was still outstanding and if payment or waiver were not received, his the Commission may make a decision to dismiss his case.

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

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.

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.

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 to this effect will be issued shortly.

COMMISSIONER

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CaseChat Overview and Summary

The Fair Work Commission dealt with an application for unfair dismissal brought by Mr Shaun Cameron against Macmahon Contractors Pty Ltd. The applicant, Mr Cameron, sought a remedy for unfair dismissal under section 394 of the Fair Work Act 2009. However, his application was incomplete as it did not include the required filing fee or a completed waiver form. The Commission attempted to contact Mr Cameron to address the incomplete application, but he did not respond to the Commission’s attempts to contact him. The Commission warned that failure to provide the fee or waiver form would result in dismissal of the application under section 587 of the Act. Despite these warnings, Mr Cameron did not respond, and his application remains incomplete.

The central legal issue in this matter was whether Mr Cameron’s application was validly made in accordance with the Fair Work Act, given that it was incomplete. Specifically, the Court had to determine whether the failure to include the filing fee or a completed waiver form rendered the application non-compliant with section 395 of the Act. Furthermore, the Court had to assess whether the application was frivolous or vexatious, or if it had no reasonable prospect of success, as per section 587(1)(a) of the Act.

The Commissioner concluded that the application was not made in accordance with the Fair Work Act due to the absence of the required fee or waiver form. The Commissioner noted that the application was incomplete and that Mr Cameron had been given multiple opportunities to address this. Despite the warnings, Mr Cameron did not respond, and therefore, the application was dismissed under section 587(1)(a). The Commissioner found that the application did not meet the requirements of the Act, and as such, it was dismissed. An Order to this effect will be issued shortly.

The Commission issued an order dismissing Mr Cameron’s application for unfair dismissal. The dismissal was pursuant to section 587(1)(a) of the Fair Work Act due to the application’s non-compliance with the Act. The Commissioner highlighted that the application was incomplete and that Mr Cameron had been given ample opportunity to provide the necessary fee or waiver form. His failure to respond resulted in the dismissal of his application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established