Brett Mustica v Down Under Group

[2021] FWC 6225

[2021] FWC 6225

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brett Mustica
v
Down Under Group
(U2021/8741)

COMMISSIONER BISSETT MELBOURNE, 28 OCTOBER 2021

Application for an unfair dismissal remedy - failure to pay filing fee - dismissal under s.587 at the Commission’s initiative.

[1] On 30 September 2021, Mr Brett Mustica (Applicant) 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).

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

[3] On 5 October 2021, the Commission attempted to contact the Applicant on his nominated telephone number to discuss payment of the required fee. The Applicant did not answer the call and there was no capacity to leave a voicemail message.

[4] Later that same day the Commission sent email correspondence to the Applicant’s nominated email address advising that his application required payment of the filing fee or a completed fee waiver form if he wished to proceed with his application. The correspondence also warned that if the Applicant did not pay the application fee or make an application to have the fee waived within 14 days his application may be dismissed.

[5] As no response was received, the Commission made a final attempt to contact the Applicant on 18 October 2021 to obtain payment or a completed fee waiver form, however the Applicant could not be reached and there was no provision to leave a voicemail message.

[6] To date there has been no response from the Applicant, the required fee has not been paid and a completed fee waiver form has not been received.

[7] 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.

[8] 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 prospects of success.

[9] 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 shortly.

COMMISSIONER

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