Damien Arthur Wigley v Equilibrium Omg Pty Ltd

[2022] FWC 3361

[2022] FWC 3361

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Damien Arthur Wigley
v

Equilibrium OMG Pty Ltd

(U2022/11387)

COMMISSIONER BISSETT MELBOURNE, 23 DECEMBER 2022

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

1. On 29 November 2022 Mr Damien Arthur Wigley 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 Form F2 filed by Mr Wigley was incomplete in that he did not provide an answer to question 1.5 – date of dismissal and 3.1 – reasons given by the Respondent for dismissal. Further, the filing fee remained unpaid.

1. On 1 December 2022 the Commission attempted to contact Mr Wigley on his nominated telephone number to request the missing details from his application and payment of the filing fee. However, Mr Wigley did not answer the call. A voicemail message was left explaining the Form F2 was incomplete and the filing fee outstanding. Mr Wigley was requested to contact the Commission, and both the Helpline and matter numbers were quoted.

1. Later that day, the Commission sent correspondence to Mr Wigley’s nominated email address asking that he provide further details as the application was incomplete and requesting payment of the filing fee. That correspondence also advised that if the outstanding information was not provided within 14 days and the filing fee not paid, the application may be dismissed.

1. As the required information was not received, on 13 December 2022 the Commission attempted to contact Mr Wigley on his nominated telephone number. However, he could not be reached. A voicemail message was left advising that his application remains incomplete and unpaid. Mr Wigley was requested to contact the Commission by close of business 15 December 2022 if he wishes to proceed with the application. Mr Wigley was informed that if no response was received, the matter will be referred to a Member of the Commission who may dismiss the application and a decision may be published on the Commission’s website.

1. To date, no response has been received and Mr Wigley has not provided the necessary details as requested.
   
   

2. 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. In these circumstances, I have determined that the application was not made in accordance with the FW Act.

1. As such, I order that the application be dismissed under s.587(1)(a) of the FW Act.

COMMISSIONER

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