State of NSW, Department of Corrective Services, FACSIA & Ors

Commonwealth Employment Services, Department of Social Security & Ors

Termination of employment - applications filed but without payment of filing fee or application for a waiver of filing fee - applicant ignored repeated requests to pay filing fee or apply for a waiver - applications invalid and should be dismissed.

[1] On 14 May 2007 the Commission dismissed an application for relief against termination of employment by the Applicant in matter U2006/6552. [1] That application related to a termination of employment on 24 July 2006 and was filed some 81 days out of time. An appeal against that decision was dismissed on 25 June 2007 and reasons for decision were published on 27 June 2007.[2]

[2] On 28 June 2007 the Applicant filed four new applications for relief against termination of employment, and on 5 July 2007 a further new application for relief against termination of employment, in respect of terminations by various employers in the period 1979 to 2005 (that is, in respect of terminations that occurred prior to the termination in matter U2006/6552). None of the applications were in the form specified in the Rules. My associate wrote to the Applicant on 5 July 2007 and again on 6 August 2007 requesting the Applicant to file amended applications utilising the form specified in the Rules. Subsequently, a single amended application was filed in matter U2007/4843. I note that the Commission has the power to waive compliance with the Rules so that a failure to use the form specified in the Rules does not necessarily spell invalidity.

[3] More importantly for present purposes, the Applicant did not pay the filing fee prescribed by the Workplace Relations Act 1996 and associated regulations; nor did he make application for a waiver of the filing fee as provided for in s.644(7) of the Act.

[4] The better view is that an application for relief against termination of employment, although filed, is not a valid application unless and until the filing fee has been paid or a waiver granted by the Registrar. Obviously, an applicant should be given a reasonable opportunity to apply for a waiver if he or she is unable to afford the filing fee before any action is taken to dismiss an application on this basis.

[5] The letters of 5 July 2007 and 6 August 2007 informed the Applicant that, in relation to each of the five applications, he was required to either pay the filing fee or apply for a waiver. The letters expressly warned that the Applicant that his applications may be dismissed if he did not pay the filing fee or apply for a waiver by a nominated date. The nominated dates have long since passed without the Applicant having paid the filing fee or applied for a waiver in any of the five matters. The Applicant has been given an ample opportunity to cure the invalidity in his applications and has neglected to do so. Each of the applications remains invalid and, in all the circumstances, should be dismissed. Orders to this effect have issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

[1] See the decision in [2007] AIRC 203 (PR977381)