Craig Montgomery v Sydale Pty Ltd T/A Island and Cape

[2014] FWC 616

[2014] FWC 616

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Craig Montgomery
v
Sydale Pty Ltd T/A Island and Cape
(U2013/17699)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 24 JANUARY 2014

Application for relief from unfair dismissal.

[1] On 20 December 2013, an application under s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Mr Craig Montgomery.

[2] Mr Montgomery did not pay the required fee.

[3] On 24 December 2013, Mr Montgomery was advised by email correspondence that his application required payment of the ($65.50) filing fee or a completed waiver form if he wished to proceed with his application.

[4] Section 395, 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.

[5] On 20 December and 23 December 2013, the Fair Work Commission (the Commission) attempted to contact Mr Montgomery by telephone in relation to the issue above. On 6 January 2014, a voicemail message was left for the Mr Montgomery, on the mobile number provided, requesting that he contact the Commission as a matter of urgency regarding payment of the filing fee and, in the absence of any communication from him, the matter may be dismissed. No response was received from Mr Montgomery and payment of the required fee has not been made.

[6] 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.

[7] 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.

DEPUTY PRESIDENT

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