Adam Lynema v The Queen Victoria Home Inc

[2016] FWC 9158

[2016] FWC 9158

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Adam Lynema
v
The Queen Victoria Home Inc.
(U2016/13444)

DEPUTY PRESIDENT CLANCY MELBOURNE, 21 DECEMBER 2016

Application for relief from unfair dismissal.

[1] On 8 November 2016, Mr Adam Lynema made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Lynema’s representative is Mr Richard Parkinson from the Health and Community Services Union – Tasmania.

[2] The application form indicated that Mr Lynema would pay the filing fee for his application and payment details were provided. When the payment was declined, Mr Lynema was contacted by telephone. He requested that a waiver form be sent to him.

[3] On 9 November 2016, Mr Lynema was advised by email correspondence that if he wished to proceed with his application, his application required the payment of the filing fee or a completed waiver form. The correspondence advised that in the absence of any advice from Mr Lynema within 14 days, his application may be dismissed.

[4] Section 395 of the Act, which deals with application fees, provides:

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.

[5] On 30 November 2016, the Fair Work Commission (the Commission) contacted Mr Lynema by telephone in relation to the correspondence dated 9 November 2016, but the call was not answered. Mr Lynema’s representative, Mr Parkinson, was then contacted and he advised that he would also try and contact Mr Lynema.

[6] As no completed waiver or payment was received, Mr Lynema was again contacted on 6 December 2016 and a message was left for him to contact the Commission’s registry. Mr Parkinson was also contacted and he advised he would again try to contact Mr Lynema by telephone and email.

[7] On 14 December 2016, Mr Parkinson advised that he had been not been able to contact Mr Lynema. No further communication has been received from Mr Lynema. The payment of the required fee has not been made and nor has a completed waiver form been received.

[8] Section 587(1) of the 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.

[9] Having regard to the circumstances of this matter, I am satisfied that as the application was not accompanied by the fee prescribed by the Act, the application was not made in accordance with the Act. As such, the application is dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued with this decision.

DEPUTY PRESIDENT

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