Binesh Bisun Prasad v Winning Appliances T/A Winning Appliances

[2018] FWC 463

[2018] FWC 463

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Binesh Bisun Prasad

v

Winning Appliances T/A Winning Appliances

(U2017/13981)

COMMISSIONER BISSETT MELBOURNE, 23 JANUARY 2018

Application for an unfair dismissal remedy.

1. On 30 December 2017, Mr Binesh Bisun Prasad made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth) (the Act).

1. The application form filed by Mr Prasad in the Fair Work Commission (the Commission) was incomplete because it was neither signed nor dated. Further, the application fee was not paid.

1. On 2 January 2018, the Commission attempted to telephone Mr Prasad, however this was unsuccessful and a voicemail message was left. Later that day, correspondence was sent to Mr Prasad which noted the application was incomplete and was made without payment of the application fee. Mr Prasad was provided an application for fee waiver and advised that in the absence of any advice from him within 14 days, his application may be dismissed.

1. Subsequently, Mr Prasad sent an email to the Commission at 7:47pm on 2 January 2018 attaching an application form which he had signed and dated. However, the application was not accompanied by a fee waiver form and the application remained unpaid.

1. As a completed waiver form had not been received or payment made, the Commission attempted to telephone Mr Prasad on 10 January 2018, however this was unsuccessful and a voicemail message could not be left.

1. A final attempt to telephone Mr Prasad was made on 19 January 2018, however this was unsuccessful and a voicemail message was left requesting that he contact the Commission urgently.

1. To date, no response from Mr Prasad has been received.

1. 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.

1. 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.

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 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 shortly.

COMMISSIONER

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