Tylk Grant v C And B Benson Family Trust & D And L Benson Family Trust & M And E Benson Family Trust

[2024] FWC 700

[2024] FWC 700

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Tylk Grant
v

C And B Benson Family Trust & D And L Benson Family Trust & M And E Benson Family Trust

(U2024/827)

DEPUTY PRESIDENT CLANCY MELBOURNE, 2 APRIL 2024

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

1. On 24 January 2024, Mr Tylk Grant made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act).

1. The application was incomplete in that Mr Grant did not pay the required application fee, nor lodge a complete Form F80 – Application for waiver of the application fee (Form F80).

1. On 25 January 2024, the Commission emailed correspondence to Mr Grant’s nominated email address requesting that he pay the required fee within 7 calendar days or lodge a completed Form F80.

1. On 29 January 2024, the Commission emailed further correspondence to Mr Grant’s nominated email address to advise him to pay the application fee or apply to have the fee waived or his application may be dismissed.

1. On 6 February 2024, the Commission attempted to contact Mr Grant on his nominated telephone number. Mr Grant did not answer the call and a voicemail message was left requesting Mr Grant to contact the Commission in order to make the payment and that his application may be dismissed if the payment is not made.   

1. Later that day, the Commission attempted to contact Mr Grant’s representative, Employee Dismissals, on their nominated telephone number to discuss payment of the required fee.  However, the call was not answered.  A voicemail message was left advising Employee Dismissals, that the Commission was yet to receive payment of the required application fee from their client, and that for the matter to proceed, requested that they contact the Commission in order to make payment.

1. On 21 February 2024, the Commission made a further attempt to contact Mr Grant on his nominated telephone number.  Mr Grant did not answer the call and a voicemail message was left requesting that he contact the Commission to make payment of the required fee or complete a Form F80.

1. On 11 March 2024, the Commission made a final attempt to contact Mr Grant on his nominated telephone number.  The call was not answered and there was no ability to leave a voicemail message.  On that same day, a further attempt was made to contact Mr Grant’s representative, Employee Dismissals to discuss payment of the required application fee.  Again, the call was not answered and a voicemail message was left to advise that the application fee had not been paid and for the matter to proceed, requested that they contact the Commission to make payment.

1. To date there has been no response from Mr Grant, nor his representative, the required fee has not been paid and nor has a completed Form F80 been received.

1. In relation to an application made pursuant to s.394 of the FW Act, s.395(1) provides that the application “must be accompanied by any fee prescribed by the regulations.” At the time the application was made, the regulations prescribed a fee of $83.30. The regulations also allow for an application to be made for the fee to be waived.

1. Section 587(1) of the FW Act provides as follows:

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.

1. In considering all the circumstances, I am satisfied that the relevant application form was not accompanied by the prescribed fee and the application has not been made in accordance with the Act. Given the absence of the fee payment, it is likely that there is no valid application before the Commission[1] and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act. Despite the attempts by the Commission to contact him and the reminders, Mr Grant has not responded, and neither has his purported representative Employee Dismissals. In these circumstances, I am satisfied that it is appropriate to dismiss the purported application. An Order[2] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] Atanaskovic Hartnell Corporate Services Pty Limited t/a Atanaskovic Hartnell v Elizabeth Maree Kelly[2017] FWCFB 763 at [29].

[2] PR772465.

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