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Fair Work Act 2009
s.394—Unfair dismissal
Kurt Lakeman
v
Valley Industries Limited
(U2020/14490)
COMMISSIONER BISSETT MELBOURNE, 25 NOVEMBER 2020
Application for an unfair dismissal remedy.
[1] On 5 November 2020, Mr Kurt Lakeman 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 filed on Mr Lakeman’s behalf by his representative, Employee
Dismissal Claims.
[2] The application was incomplete in that neither Employee Dismissal Claims nor Mr
Lakeman paid the required fee or file a completed waiver form. This is despite the email from
Employee Dismissal Claims to which the application was attached stating that a
“representative from Employee Dismissal Claims shall be in contact to process payment of
the filing fee.”
[3] On 6 November, the Commission attempted to contact Employee Dismissal Claims on
their nominated telephone number to discuss payment of the required fee however, they did
not answer the call. A voicemail message was left requesting them to contact the
Commission.
[4] Later that day, the Commission emailed correspondence to Mr Lakeman and
Employee Dismissal Claims to their nominated email addresses advising that the application
required payment of the filing fee or a completed waiver form if Mr Lakeman 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 Lakeman’s nominated telephone number, advising that there
was a problem with his application and requesting him to contact the Commission.
[5] Another attempt to contact Mr Lakeman and Employee Dismissal Claims was made
by the Commission on 18 November 2020 to obtain payment or a completed waiver form.
Neither calls were answered, and a voicemail message was left advising Mr Lakeman and
Employee Dismissal Claims that payment of the required fee was still outstanding.
[2020] FWC 6329
DECISION
E AUSTRALIA FairWork Commission
[2020] FWC 6329
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[6] Later that day Mr Lakeman contacted the Commission by telephone. The Commssion
advised Mr Lakeman that the Commission had attempted to contact him and his
representative in relation to the outstanding payment of the filing fee. Mr Lakeman advised
that he understood that his representative was to pay the fee as soon as the application was
lodged. Mr Lakeman did not pay the fee.
[7] A final attempt to contact Mr Lakeman and Employee Dismissal Claims was made by
the Commission on 23 November 2020 to obtain payment or a completed waiver form.
Neither call was answered.
[8] To date there has been no response from Mr Lakeman or Employee Dismissal Claims
to the requirement to pay the fee, the required fee has not been paid and a completed waiver
form has not been received.
[9] 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.
[10] 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.
[2020] FWC 6329
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[11] 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 Order1 to this effect will be issued shortly.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
PR724866
Endnote:
1 PR724868
THE FAIR WORK MMISSION THE SEAL
