Benjamin Vincent Rossiter v Brookside Dairy

[2022] FWC 1053

[2022] FWC 1053

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Benjamin Vincent Rossiter
v

Brookside Dairy

(U2022/4032)

COMMISSIONER BISSETT MELBOURNE, 6 MAY 2022

Application for an unfair dismissal remedy – unpaid application – dismissal under s.587 at the Commission’s initiative

1. On 6 April 2022 Mr Benjamin Vincent Rossiter 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 Rossiter did not pay the required fee or file a completed waiver form.

1. On 6 April 2022 the Commission attempted to contact Mr Rossiter on his nominated telephone number to discuss payment of the required fee however, Mr Rossiter did not answer the call. A voicemail message was left requesting a call back to the Commission to organise payment of the filing fee. An SMS notification was also sent to Mr Rossiter’s nominated telephone number, advising that there was a problem with their application and requesting he contact the Commission.

1. Later that day, the Commission emailed correspondence to Mr Rossiter’s nominated email address advising that their 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.

1. A final attempt to contact Mr Rossiter was made by the Commission on 19 April 2022 to obtain payment or a completed waiver form. Mr Rossiter advised that he was unable to pay the filing fee. Mr Rossiter was asked to complete the fee waiver form and to provide it to the Commission by 20 April 2022.

1. To date there has been no response from Mr Rossiter, 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:

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. 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. 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

[1] PR741299.

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