Benjamin D'Agostino v Lusal Pty Ltd

[2023] FWC 1067

[2023] FWC 1067

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Benjamin D’Agostino
v

Lusal Pty Ltd

(U2023/2555)

DEPUTY PRESIDENT O’NEILL MELBOURNE, 5 MAY 2023

Application for an unfair dismissal remedy

1. On 27 March 2023 Mr Benjamin D’Agostino 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).

1. The application was incomplete in that Mr D’Agostino did not pay the required fee or file a completed waiver form.

1. On 2 April 2023 the Commission emailed correspondence to Mr D’Agostino’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 is not made or a waiver form is not received within 7 calendar days the application may be dismissed.

1. On 12 April 2023 the Commission emailed correspondence to Mr D’Agostino’s nominated email address reminding 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 is not made or a waiver form is not received, the application may be dismissed.

1. A final attempt to contact Mr D’Agostino on his nominated telephone number was made by the Commission on 13 April 2023. However, Mr D’Agostino could not be reached. A voicemail message was left advising Mr D’Agostino that payment of the required fee or a completed waiver form was still outstanding and his matter may be at risk of being dismissed. Both the matter and Commission’s contact number were quoted.

1. To date there has been no response from Mr D’Agostino, the required fee has not been paid and a completed waiver form has not been received.

1. 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.

1. Section 587(1) of the FW Act provides as follows:

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.

1. 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. As such, the application is dismissed pursuant to s.587(1)(a) of the FW Act.

DEPUTY PRESIDENT

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