Steven Watson v Es Qld Security Pty Ltd T/A Es Qld Security

[2020] FWC 5313

[2020] FWC 5313

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Watson
v
ES QLD Security Pty Ltd T/A ES QLD Security
(U2020/11759)

COMMISSIONER BISSETT MELBOURNE, 6 OCTOBER 2020

Application for an unfair dismissal remedy.

[1] On 31 August 2020, Mr Steven Watson 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 Mr Watson’s Representative did not pay the required fee or file a completed waiver form. The Applicant’s Legal Representative, Mr William Sun of Sun & Co Lawyers (the Representative), nominated themselves as the payer for the application filing fee.

[3] On 1 September 2020, the Commission attempted to contact the Representative on its nominated telephone number to discuss payment of the required fee. However, Mr Sun’s Law Clerk, Ana Maria Plantos, was unavailable. A message was left with the Receptionist requesting that Ms Plantos contact the Commission to arrange payment.

[4] Later that day, the Commission emailed correspondence to Mr Watson and Mr Sun on their nominated email addresses advising that the application required payment of the filing fee or a completed waiver form if they 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. An SMS notification was also sent to Mr Sun’s nominated telephone number, advising that there was a problem with Mr Watson’s application and requesting them to contact the Commission. A contact number was not provided for Mr Watson to issue the SMS.

[5] The Commission contacted Ms Plantos on her nominated telephone number on 14 September 2020 to obtain payment. Ms Plantos advised she could not locate the corporate credit card and she would contact the Commission the next day (15 September 2020) to process payment. She was additionally advised if payment was not made or a waiver form was not received within 14 days of the original email correspondence that was sent, the application may be dismissed, and a decision may be published on the Commission’s website.

[6] On 17 September 2020, the Commission attempted to contact Mr Sun on his nominated telephone number. However, there was no response. The Commission also emailed correspondence to Ms Plantos on her nominated email address requesting her to call the Commission to arrange payment. Later that day, a final attempt to contact Ms Plantos was made by the Commission to obtain payment or a completed waiver form. Ms Plantos advised that she has experienced issues contacting her client Mr Watson to obtain his credit card details. She said she would immediately attempt contacting Mr Watson and afterwards contact the Commission to arrange payment. She advised she understands the application is at risk of possibly being dismissed if the filing fee remains unpaid.

[7] To date there has been no response from Mr Watson or Mr Sun or ms Plantos, the required fee has not been paid and a completed waiver form has not been received.

[8] 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.

[9] 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 prospects of success.

[10] 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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