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

[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

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).

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

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.

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.

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.

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

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 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.

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.

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.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Ernesto Yutadco v Sky Vision Cleaning Pty Ltd T/A New Vision, the applicant, Mr Ernesto Yutadco, sought a remedy for unfair dismissal under section 394 of the Fair Work Act 2009. The respondent, Sky Vision Cleaning Pty Ltd T/A New Vision, did not contest the application, but the application was dismissed due to procedural deficiencies. The Fair Work Commission was required to determine whether Mr Yutadco's application was made in accordance with the Act and whether it had any reasonable prospects of success.

The key legal issues before the Commission were whether Mr Yutadco's application complied with the procedural requirements outlined in the Fair Work Act, specifically the necessity to pay the required application fee or apply for a waiver, and whether the application had any reasonable prospects of success. Section 395 of the Act mandates that an application must be accompanied by the prescribed fee, with provisions for fee waivers under certain circumstances. Section 587 allows the Commission to dismiss an application if it is not made in accordance with the Act, lacks reasonable prospects of success, or is frivolous or vexatious.

The Deputy President concluded that Mr Yutadco's application was not made in accordance with the Act due to the failure to pay the prescribed fee or apply for a waiver, as required by section 395. Despite multiple warnings and opportunities to rectify the deficiency, Mr Yutadco did not address the procedural issue. The Deputy President found that the application was also likely to be dismissed for lacking reasonable prospects of success due to the procedural non-compliance. Consequently, the Deputy President dismissed the application under section 587(1)(a) of the Act.

The Fair Work Commission dismissed Mr Yutadco's application for unfair dismissal, noting the failure to comply with the fee requirements and the absence of reasonable prospects of success. This decision underscores the importance of procedural compliance in applications to the Commission, highlighting that failure to meet basic requirements can lead to the dismissal of an application.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established