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Fair Work Act 2009
s.394—Unfair dismissal
Jason Thurlow
v
Millennium Marine (Aust) Pty Ltd
(U2023/9625)
DEPUTY PRESIDENT CLANCY MELBOURNE, 21 DECEMBER 2023
Application for an unfair dismissal remedy – application dismissed.
[1] On 4 October 2023, an application was made on behalf of Mr Jason Thurlow
(Applicant) 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 signed and lodged by Employee
Dismissals, as paid agent for Mr Thurlow.
[2] The application was incomplete in that Mr Thurlow had not paid the required application
fee, nor lodged a complete Form F80 – Application for waiver of the application fee (Form
F80).
[3] On 9 October 2023, the Commission emailed correspondence to Mr Thurlow’s
nominated email address advising that his application required payment of the application fee
or a completed Form F80 if he wished to proceed with the application. That correspondence
also warned that if payment was not made or a Form F80 completed within 7 calendar days his
application may be dismissed. On 17 October 2023, the Commission emailed correspondence
to Mr Thurlow’s nominated email address, again reminding him that his application required
payment of the application fee or a completed Form F80 if he wished to proceed and warning
him that his application may be a risk of dismissal. Mr Thurlow replied to the Commission’s
email informing the Commission that he was unable to pay the fee and was at risk of becoming
homeless. On 19 October 2023, Mr Thurlow filed a Form F80 and the Commission granted the
fee waiver.
[4] On 26 October 2023, the Commission emailed a notice of listing to the parties notifying
them of a telephone staff conciliation to be held at 2:15PM on 14 November 2023. On 9
November 2023, the Respondent emailed the Commission confused about the listing and the
request to file a Form F3 – Employer Response. The Respondent stated that the matter had been
dealt with already via a telephone staff conciliation two weeks earlier.
[5] On 14 November 2023, the Commission called Employee Dismissals who informed the
Commission that they had been unable to contact Mr Thurlow for two weeks. The Commission
then also called the Respondent, who was frustrated that they were being called again regarding
[2023] FWC 3423
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 3423
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a matter which they stated had already been resolved. A search of the Commission’s matters
revealed that two separate applications had been lodged regarding the same matter. On 29
September 2023, Mr Thurlow had lodged an application himself, this was given the matter
number U2023/9375 and was resolved, via staff conciliation, on 26 October 2023. Five days
after the initial application lodged by Mr Thurlow, Employee Dismissals lodged the application
giving rise to this matter.
[6] Entirely unhelpfully, Employee Dismissals filed a Form F54 – Notice of Representative
Ceasing to Act (Form F54) on 16 November 2023. Employee Dismissals had added absolutely
nothing to this process. On 4 December 2023, the Commission emailed Mr Thurlow on his
nominated email address seeking that he discontinue the matter by the end of the day, or his
matter will be dismissed.
[7] 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.
[8] In considering all the circumstances, I am satisfied that this application now concerns
an otherwise resolved matter. It may be discerned that, in the unlikely event that Mr Thurlow
ever sought to reagitate his dispute, the Respondent would likely argue that there has been a
binding settlement agreement made in respect of the other application, such that this application
has no reasonable prospects of success. I have therefore determined that this application has no
reasonable prospects of success. The application is therefore dismissed under s.587(1)(c) of the
FW Act. An Order1 to this effect will be issued with this decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR769658
1 PR769649.
THE FAI ORK COMMISSION THE SEA
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr769649.pdf
