Stuart Macdonald v Casey Arc Aquatic and Recreation Centre

[2018] FWC 6631

[2018] FWC 6631

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stuart Macdonald
v
Casey Arc Aquatic and Recreation Centre
(U2018/9695)

DEPUTY PRESIDENT CLANCY MELBOURNE, 29 OCTOBER 2018

Application for an unfair dismissal remedy.

[1] On 23 August 2018, Mr Stuart Macdonald made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Macdonald did not pay the required fee.

[3] Due to technical difficulties, the Fair Work Commission (the Commission) was unable to locate Mr Macdonald’s application until 20 September 2018, after which the Commission sought to contact Mr Macdonald by telephone to request the payment of the filing fee. There was no answer and a voicemail message was left seeking his return call. Email correspondence was then sent to Mr Macdonald advising that if he wished to proceed with his application, payment of the filing fee or an application to have the fee waived should be made. Mr Macdonald was advised that in the absence of any advice from him within 14 days, his application may be dismissed.

[4] On 3 October 2018, the Commission made a further attempt to contact Mr Macdonald by telephone, however this was unsuccessful and a voicemail message was left seeking his return call. Further email correspondence was then sent to Mr Macdonald advising that if he wished to proceed with his application, payment of the filing fee or an application to have the fee waived was required. Mr Macdonald was provided with a further 14 days to pay the application filing fee or to apply for a fee waiver. It was again noted that in the absence of any advice from him within 14 days, his application may be dismissed.

[5] On 11 October 2018, the Commission made a final attempt to contact Mr Macdonald by telephone. As he did not answer, a voicemail message was left requesting his return call. Final email correspondence was sent to Mr Macdonald providing him with a further 14 days to pay the application filing fee or to make an application to have the fee waived. It was again noted that in the absence of any advice from him within 14 days, his application may be dismissed.

[6] To date, no response from Mr Macdonald has been received.

[7] Section 395 of the Act, which deals with application fees, provides:

“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.”

[8] Section 587(1) of the 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.”

[9] Having regard to the circumstances of this matter, I am satisfied that as the application was not accompanied by the fee prescribed by the Act, the application was not made in accordance with the Act. As such, the application is dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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