Eneida Raya v Transport for NSW via Hays
[2022] FWC 741
| [2022] FWC 741 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Eneida Raya
v
Transport for NSW via Hays
(U2022/2446)
| cOMMISSIONER bISSETT | MELBOURNE, 4 April 2022 |
Application for relief from unfair dismissal – incomplete application – failure to pay filing fee – multiple respondents – dismissal under s.587 at the Commission’s initiative.
On 24 February 2022, Eneida Raya (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).
The Form F2 – Unfair dismissal application (application form) made by the Applicant was incomplete in that it did not include payment of the required fee or a completed fee waiver form. There were additional issues with the application in that it had not been signed and the application named multiple Respondents.
On 25 February 2022, the Commission telephoned the Applicant and advised her that payment of the application fee was still outstanding and that there were multiple issues with the application form. The Applicant advised that she had sought legal advice.
Later that day, the Commission emailed correspondence to the Applicant’s nominated email address stating that the application was incomplete because it had not been signed and was made without payment of the required fee. The correspondence also advised that the multiple Respondents had been named in the application form and that the Applicant needed to identify the correct Respondent. That correspondence warned that if payment is not made or a waiver form is not received with an amended application within 14 days, the application may be dismissed.
On 28 February 2022, the Applicant filed a further Form F2 however the application form remained unsigned and contained multiple respondents and no payment or fee waiver form was provided.
On 17 March 2022, the Commission attempted to contact the Applicant on her nominated telephone number to discuss her application and payment of the required fee. The Applicant did not answer the call. A voicemail message was left requesting she contact the Commission by no later than 18 March 2022 otherwise her application may be dismissed.
To date the Applicant has not provided a completed application form and has not paid the required fee or sought a waiver.
Section 395 of the 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.
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.
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
[1] PR739989
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