Daniel Kiberet v Melbourne Health

[2023] FWC 254

[2023] FWC 254

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Daniel Kiberet
v

Melbourne Health

(U2023/370)

COMMISSIONER BISSETT MELBOURNE, 30 JANUARY 2023

Application for an unfair dismissal remedy

1. On 12 January 2023 Mr Daniel Kiberet 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 Kiberet did not pay the required fee or file a completed waiver form.

1. On 16 January 2023 the Commission sent correspondence to Mr Kiberet’s nominated email address advising that his 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 is not made or a waiver form is not received within 7 calendar days the application may be dismissed.

1. On 17 January 2023 an SMS notification was sent to Mr Kiberet’s nominated telephone number advising of the requirement to action the payment request email from the Fair Work Commission.

1. On 19 January 2023 the Commission sent correspondence to Mr Kiberet’s nominated email address reminding him that his 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 is not made or a waiver form is not received, the application may be dismissed.

1. A final attempt to contact Mr Kiberet on his nominated telephone number was made by the Commission on 23 January 2023 to obtain payment or a completed waiver form. Mr Kiberet advised that he had been in contact with Melbourne Health and wanted to delay paying the filing fee until discussions had been finalised. The Commission explained that the due date for the payment of the filing fee could not be extended. Mr Kiberet indicated that he would seek independent advice and contact the Commission to discuss the outcome.

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

COMMISSIONER

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