Troy Barry v Fabcon Pty Ltd

[2021] FWC 383

[2021] FWC 383

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Troy Barry
v
Fabcon Pty Ltd
(U2021/128)

COMMISSIONER BISSETT MELBOURNE, 16 FEBRUARY 2021

Application for an unfair dismissal remedy.

[1] On 6 January 2021, Mr Troy Barry 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 Barry did not pay the required fee or file a completed waiver form.

[3] On 7 January 2021, the Commission posted correspondence to Mr Barry’s nominated postal 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 was not made or a waiver form not received within 14 days, the application may be dismissed. An SMS notification was also sent to Mr Barry’s nominated telephone number, advising that there was a problem with his application and requesting he contact the Commission.

[4] On 21 January 2021, the Commission attempted to contact Mr Barry on his nominated telephone number, however the call could not be connected.

[5] Later that day, the Commission sent correspondence to Mr Barry’s nominated email address advising him that the Commission required payment of the filing fee or a completed waiver form if he wished to proceed with the application and requested he contact the Commission.

[6] The Commission again attempted to contact Mr Barry by telephone on 22 January 2021, and again on 5 February 2021, to obtain payment or a completed waiver form. Neither call was answered, and on both occasions a voicemail message was left advising Mr Barry that payment of the required fee was still outstanding.

[7] To date, there has been no response from Mr Barry, 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 prospect 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 and 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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