Ernesto Yutadco v Sky Vision Cleaning Pty Ltd T/A New Vision

[2024] FWC 1285

[2024] FWC 1285

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ernesto Yutadco
v

Sky Vision Cleaning Pty Ltd T/A New Vision

(U2024/4529)

DEPUTY PRESIDENT EASTON SYDNEY, 16 MAY 2024

Application for an unfair dismissal remedy

1. On 19 April 2024 Mr Ernesto Yutadco, (the 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 (the Act).

1. The application was incomplete because Mr Yutadco did not pay the required fee or file a completed waiver form.

1. On 26 April 2024 the Commission emailed correspondence to Mr Yutadco’s representative’s nominated address advising that Mr Yutadco must pay the filing fee or apply for a waiver if he wished to proceed with the application. Mr Yutadco was also warned that if the filing fee was not paid within 7 calendar days the application could be dismissed.

1. On 29 April 2024 the Commission emailed correspondence to Mr Yutadco’s representative’s nominated address in similar terms and with the same warning that Mr Yutadco’s application could be dismissed. An SMS notification was also sent to Mr Yutadco and to his representative.

1. On 1 May 2024 the Commission made a final attempt to contact Mr Yutadco’s representative, this time with partial success. Mr Yutadco’s representative advised that he needed to obtain credit card details to make payment. The representative was specifically advised that if payment was not made by close of business on Thursday, 2 May 2024 the application could be dismissed without further notice.

1. To date there has been no response from Mr Yutadco’s representative, no fee paid and no waiver request received.

1. 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.

1. Section 587 of the 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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A.

…

(3) The FWC may dismiss an application:

(a) on its own initiative; or
(b) on application.

1. Mr Yutadco’s application was not made in accordance with the Act (per s.587(1)(a)) because the prescribed fee (per s.395) has not been paid or waived. Section 587 confers a discretion on the Commission to dismiss Mr Yutadco’s application.

1. I am satisfied that Mr Yutadco’s application should be dismissed. Mr Yutadco and his representative have been given ample opportunity to rectify the deficiency in the application. The Commission’s inquiries, requests and warnings have largely been ignored.

1. I have separately made an order dismissing Mr Yutadco’s application (PR775077).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR775076>