Anthony Mautone v Winc Australia Pty Ltd

[2021] FWC 6641

[2021] FWC 6641

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Mautone
v
Winc Australia Pty Ltd
(U2021/10769)

COMMISSIONER BISSETT MELBOURNE, 21 DECEMBER 2021

Application for an unfair dismissal remedy

[1] On 25 November 2021 Mr Anthony Mautone made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Mr Mautone alleged he was unfairly dismissed by Winc Australia Pty Ltd (the Respondent) on 3 November 2021.

[2] The application was incomplete in that Mr Mautone did not pay the required fee or file a completed waiver form.

[3] On 25 November 2021 the Commission attempted to contact Mr Mautone on his nominated telephone number to discuss payment of the required fee however, Mr Mautone did not answer the call. A voicemail message was left requesting Mr Mautone contact the Commission to complete payment of the application fee.

[4] Later that day, the Commission emailed correspondence to Mr Mautone’s nominated email address advising that his application required payment of the filing fee or a completed waiver form if he wished to proceed with the application. That correspondence also warned that if payment was not made or a waiver form was not received within 14 days, the application may be dismissed.

[5] On 26 November 2021 Mr Mautone called the Commission and advised that he would be lodging a Form F80 fee waiver application.

[6] On 8 December 2021, Mr Mautone was contacted by the Commission to discuss payment, as the Form F80 had not been received. Mr Mautone did not answer the call. A voicemail message was left requesting Mr Mautone contact the Commission in relation to payment of the application fee.

[7] Later that day, the Commission received a phone call from Mr Mautone. He was informed by the Commission that his matter was at risk of being dismissed and that he had until 10 December 2021 to submit the Form F80.

[8] A final attempt to contact Mr Mautone was made by the Commission on 10 December to obtain payment or a completed waiver form. Mr Mautone advised that he would submit his Form F80 that day.

[9] To date the required fee has not been paid and, despite repeated undertakings to do so, a completed waiver form has not been received.

[10] Section 395 of the FW Act, which deals with application fees, provides as follows:

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.

[11] Section 587(1) of the FW 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 prospect of success.

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

COMMISSIONER

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