What happened

Kane Milham lodged an unfair dismissal application in the Fair Work Commission on 29 May 2020 under s.394 of the Fair Work Act 2009 (FW Act). The application, however, was incomplete because it was not accompanied by the prescribed filing fee and no completed fee waiver form was filed [1]-[2]. The Commission attempted to contact Mr Milham by telephone on the day of filing, to no avail, and then emailed him a fee waiver form while advising that payment of the filing fee or a completed fee waiver form was required to proceed, warning that failure to comply within 14 days could result in dismissal [3]-[4]. SMS messages were also sent [4].

On 1 June 2020 Mr Milham returned the Commission's call and was told he needed to pay the fee or file a waiver; he did not do either [5]. On 10 June 2020 the Commission again telephoned, left a voicemail about the outstanding fee, and later that day Mr Milham telephoned saying he wanted to "leave" the application; the Commission advised that a withdrawal would be necessary to do that, and Mr Milham said he would think about it but did not formally withdraw [6]-[7]. As at the date of the decision, there had been no payment, no completed waiver form and no formal withdrawal [8].

Commissioner Bissett applied ss.395 and 587 of the FW Act, concluding that because the application was not accompanied by the prescribed fee it was not made in accordance with the Act and was therefore properly dismissed under s.587(1)(a) [9]-[11]. An order to that effect was to be issued [11].

Why the court decided this way

The decision is firmly statutory in character. Two provisions supply the legal framework that dictates the outcome.

First, s.395 imposes the filing obligation: an application to the Commission under the Division must be accompanied by any fee prescribed by the regulations. That is a mandatory statutory requirement introduced into the reasons at [9].

Second, s.587(1) grants the Commission an express power to dismiss applications in specified circumstances, including where an application is "not made in accordance with this Act" (s.587(1)(a)). That provision was quoted in full at [10] and forms the dismissal power relied upon.

Applying those provisions to the facts, the Commissioner reasoned that non-payment of the prescribed fee means the application failed to meet the statutory requirements of s.395. The Commission had taken reasonable procedural steps to notify the applicant of the defect: attempted telephones, an email with a fee waiver form and express warning about possible dismissal within 14 days, and SMS messages. The applicant had opportunities to rectify the defect (including a direct phone conversation on 1 June and later contact on 10 June) but did not pay, did not file a waiver form, and did not formally withdraw the application [3]-[8]. In those circumstances the statutory power to dismiss was engaged and properly exercised. The operative finding is set out at [11].

The decision therefore follows straightforward statutory construction and application: there is a prescribed precondition to the validity of a filing, the precondition was not met, and the statute empowers the tribunal to dismiss for that precise reason.

Before and after state of the law

This decision does not purport to change or develop novel principles. Rather it applies the existing statutory scheme of the Fair Work Act to an uncontroversial factual scenario: non-compliance with a simple filing requirement.

Before this decision: ss.395 and 587 of the FW Act already existed and had been understood to govern filing fees and the Commission's power to dismiss. The judgment assumes the authority and mandatory character of the fee requirement and the dismissal power. The decision therefore reinforces the established statutory position: applications must comply with fee requirements or risk dismissal.

After this decision: the practical import is a clear statement that failure to accompany an application with the prescribed fee (or a completed fee waiver form where appropriate) will be treated as failure to make the application in accordance with the Act, thus activating s.587(1)(a). The Commission's procedural adherence, contacting the applicant, providing a waiver form, and warning of dismissal within a specified time, demonstrates the administrative safeguards the Commission considers sufficient before dismissal. Practitioners should treat this decision as a practical reminder to ensure fee compliance and to attend quickly to fee waivers where necessary.

Key passages with plain-English translation

• Paragraph [2]: "The application was incomplete in that Mr Milham did not pay the required fee or file a completed fee waiver form."

  Plain-English: The applicant filed the wrong kind of application because it lacked the money the law requires or the paperwork asking to waive that money.

• Paragraph [4]: "The correspondence also warned that if he did not pay the application fee or make an application to have the fee waived within 14 days his application may be dismissed."

  Plain-English: The Commission told him in writing that he had two weeks to pay or apply to waive the fee, and that otherwise the Commission might cancel his case.

• Paragraphs [9]-[10]: statutory quotes of s.395 and s.587(1).

  Plain-English: The law says you must pay the fee when you file. The law also says the Commission can dismiss a case if it does not follow the law, or if it is clearly baseless or pointless.

• Paragraph [11]: "Having regard to the circumstances ... the application was not accompanied by the fee prescribed by the FW Act ... the application is dismissed pursuant to s.587(1)(a) of the FW Act."

  Plain-English: Because he did not include the required fee, the Commission decided the filing did not meet the legal requirements and therefore threw out the case under the statute.

What fact patterns trigger this precedent

This decision is triggered by straightforward fact patterns where:

• An applicant lodges a claim under the FW Act provisions that requires payment of a prescribed fee (s.395), and
• The application is lodged without payment and without a completed fee waiver form, and
• The Commission notifies the applicant of the omission, provides the waiver form, warns of possible dismissal within a timeframe (here 14 days), and makes reasonable subsequent attempts to contact the applicant, and
• The applicant does not pay, does not file a waiver form, and does not formally withdraw the application.

In such a constellation of facts, this decision signals that the Commission will regard the application as not made in accordance with the Act and will dismiss under s.587(1)(a). Crucially, the Commission emphasised the procedural steps it took to notify and provide the opportunity to cure the defect; absence of those steps may affect the Commission's exercise of discretion in other circumstances.

How later courts have treated it

The decision itself is a single-member Commission decision recorded at [11]; it does not cite or rely upon prior case law in its reasons. The text does not report any subsequent appellate treatment or citations of this decision by other decisions. Therefore, from this judgment alone we cannot report any later judicial consideration, application, distinguishing or overruling of this decision.

Practical guidance from the text for later decision-makers or practitioners is evident though: the Commission expects compliance with the statutory fee rule and will document procedural attempts to notify and provide a waiver form before dismissal. Later decisions that involve similar administrative dismissal for non-payment will need to consider whether comparable notification and opportunity to cure were afforded.

Still-open questions

Several issues that could arise in future litigation are not addressed in detail by this decision and remain open:

1. Degree of procedural fairness required before dismissal: The Commission described its steps, telephone attempts, email with waiver form, SMS, voicemail and one substantive telephone contact where the applicant was informed of requirements [3]-[7], and treated those as adequate. The decision does not analyse whether fewer or differently framed contacts would suffice in other cases, or whether an applicant with particular vulnerabilities (for example, lack of email access) might require different steps. The precise minimum steps required to satisfy procedural fairness before dismissal are not settled by this brief decision.

2. Timing and reasonableness of the 14-day warning: The Commission warned of dismissal if payment or a waiver application was not made within 14 days [4]. The decision does not discuss how the Commission sets that timeframe, whether a longer period might ever be required, or whether the reasonableness of the period is a context-dependent assessment.

3. Discretion when an applicant expresses an intention to withdraw: Mr Milham telephoned on 10 June saying he wanted to "leave" the application, but did not formally withdraw [7]. The decision does not examine the legal effect of an oral statement of intent to withdraw, the administrative formality required for withdrawal, or whether the Commission has discretion to treat an oral abandonment as a withdrawal in some circumstances.

4. Consequences of a submitted but incomplete waiver form or late payment: The judgment records only the binary present facts, no payment, no completed fee waiver form, and does not address situations where a waiver form is lodged but incomplete, or where payment is made after a dismissal but within a period where reinstatement or relief might be sought.

5. Interaction with merits: The Commission noted the alternative grounds for dismissal under s.587(1)(b) and (c) (frivolous/vexatious or no reasonable prospects) but did not need to consider them [10]. The decision therefore leaves open how strictly the Commission will apply those alternative grounds in comparison to a procedural ground.

For practitioners and compliance officers, the practical takeaway is clear: ensure fee requirements are met at lodgement or that a fully completed waiver form is filed promptly; if a client lacks capacity to comply immediately, notify the Commission and seek explicit agreement on an alternate timetable or further guidance. This decision exemplifies the consequences of failing to address straightforward statutory preconditions for filing.