Emilio Nacua v Serco Australia Pty Ltd Summary

[2025] FWC 2717

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Emilio Nacua
v

Serco Australia Pty Ltd

(U2025/5918)

DEPUTY PRESIDENT EASTON

SYDNEY, 12 SEPTEMBER 2025

Application for an unfair dismissal remedy – application fee not paid or waived – application not made in accordance with the Act - application dismissed.

On 13 May 2025, Mr Emilio Nacua made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

The application filed by Mr Nacua was incomplete because he did not pay the application fee or apply for a waiver, and he did not sign his application.

Commission staff attempted to contact Mr Nacua on 15 May, 28 May and 2 July 2025 by telephone, SMS and email.

Section 587 confers a discretion on the Commission to dismiss Mr Nacua’s application if it has not been made in accordance with the Act. Mr Nacua has had ample opportunity to rectify the deficiencies in his application and has had ample opportunity to show why his application should not be dismissed under s.587 (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [15]-[16] and the cases cited therein).

I make the following order:

A.The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Emilio Nacua on 13 May 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Emilio Nacua filed an application with the Fair Work Commission seeking a remedy for unfair dismissal against Serco Australia Pty Ltd. The application was lodged under section 394 of the Fair Work Act 2009. However, the application was deemed incomplete as Mr Nacua failed to pay the requisite application fee or apply for a fee waiver, and he did not sign the application. Despite multiple attempts by Commission staff to contact Mr Nacua to rectify these deficiencies, no action was taken to complete the application.

The legal issues before the Deputy President involved whether the application complied with the requirements of the Fair Work Act, and if not, whether the application should be dismissed under section 587 of the Act. Section 587 grants the Fair Work Commission discretion to dismiss an application if it is not made in accordance with the Act. The Deputy President considered whether Mr Nacua had been given sufficient opportunity to rectify the deficiencies and whether there were grounds to dismiss the application.

In ruling on the matter, the Deputy President noted that Mr Nacua had been provided with multiple opportunities to correct the deficiencies in his application, including opportunities to pay the application fee or apply for a waiver, and to sign the application. Given that Mr Nacua did not take any steps to remedy these issues, the Deputy President concluded that the application did not comply with the Act. The Deputy President referred to previous cases, including Bond v Carbridge Pty Ltd, to support the exercise of discretion to dismiss the application under section 587.

The Deputy President dismissed Mr Nacua's application for an unfair dismissal remedy. The decision was made on the basis that the application was not made in accordance with the Fair Work Act, and Mr Nacua had not taken any steps to rectify the deficiencies despite multiple opportunities to do so.

Emilio Nacua v Serco Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established