Alexei Hernandez v JBS Meat Works

[2018] FWC 7770

[2018] FWC 7770

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alexei Hernandez
v
JBS Meat Works
(U2018/10738)

DEPUTY PRESIDENT CLANCY MELBOURNE, 21 DECEMBER 2018

Application for an unfair dismissal remedy.

[1] On 17 October 2018, Mr Alexei Hernandez made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In his Form F2 – Unfair Dismissal Application (Form F2), Mr Hernandez named the respondent as “JBS Meat Works Trading as Employed under Labour Solutions” and appeared to indicate in the body of the Form F2 that he was employed by two entities: JBS Meat Works (JBS) and Labour Solutions. Mr Hernandez did not answer questions 1.1, 1.2 and 1.3 of the Form F2 pertaining to the dates of when he commenced work for his employer, when he was notified of his dismissal and when his dismissal took effect. Mr Hernandez also attached to his application a Form F80 – Waiver of application fee (Form F80), however this was incomplete and accordingly, payment of the required fee was not made.

[3] On 18 October 2018, the Commission sent email correspondence to Mr Hernandez advising that only one respondent could be listed on his application and requesting that he advise the Commission which respondent he wished to pursue his application against, or alternatively that he lodge another Form F2 application if he wished to proceed against both respondents. The correspondence also requested Mr Hernandez’s answers to questions 1.1, 1.2 and 1.3 and further warned that if he did not pay the required fee or make an application to have the fee waived within 14 days, his application may be dismissed.

[4] The Commission’s records show that on 29 October 2018, an attempt was made to telephone Mr Hernandez in relation to his incomplete application. Whilst the call was made to Mr Hernandez’s contact number nominated on his Form F2, the Commission spoke to “Samantha”, who advised that she would speak to Mr Hernandez in relation to his application and would notify the Commission of the outcome of the discussions.

[5] A further telephone call to Mr Hernandez’s nominated contact number was made on 14 November 2018 and again, the Commission spoke to “Samantha” who advised that Mr Hernandez did not understand what needed to be done and that she was not in a position to assist. The Commission’s records indicate that “Samantha” further advised that they may have to “let [the] application lapse”.

[6] On 5 December 2018, the Commission successfully established contact with Mr Hernandez directly. Mr Hernandez was advised that his application was incomplete and confirmed that he wished to proceed with his matter against JBS, not Labour Solutions. The Commission confirmed the email address nominated on Mr Hernandez’s Form F2 and obtained an additional email address for which correspondence could be sent. Following this, final email correspondence was sent to Mr Hernandez’s nominated and additional email addresses advising that he was required to complete the unanswered questions in his Form F2 and return this to the Commission. The correspondence further advised Mr Hernandez to either make payment of the application fee or make an application to have the fee waived within seven days, or his application was at risk of being dismissed.

[7] To date, Mr Hernandez has not responded to the Commission’s correspondence or provided the necessary details as requested.

[8] 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.”

[9] 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.”

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

DEPUTY PRESIDENT

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