Ezekiel Lowa v Chain Reaction Bicycle Company
[2023] FWC 12
•4 JANUARY 2023
| [2023] FWC 12 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ezekiel Lowa
v
Chain Reaction Bicycle Company
(U2022/11666)
| COMMISSIONER BISSETT | MELBOURNE, 4 JANUARY 2023 |
Application for an unfair dismissal remedy – unpaid application – dismissal under s.587 at the Commission’s initiative.
On 8 December 2022 Mr Ezekiel Lowa 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 application was incomplete in that Mr Lowa did not pay the required fee or file a completed waiver form.
On 12 December 2022 the Commission contacted Mr Lowa on his nominated telephone number to discuss payment of the required fee. Mr Lowa understood and advised he would attend to the issue.
Later that day the Commission emailed correspondence to Mr Lowa’s nominated email address advising that his application required payment of the filing fee or a completed waiver form to proceed with the application. That correspondence also warned that, if payment was not received or a completed waiver form completed within 14 days, the application may be dismissed. An SMS notification was also sent to Mr Lowa’s nominated telephone number advising that there was a problem with his application and requesting he contact the Commission.
On 20 December 2022 the Commission emailed correspondence to Mr Lowa’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 was not made or a waiver form was not received, the application may be dismissed
A final attempt to contact Mr Lowa was made by the Commission on 23 December 2022 to obtain payment or a completed waiver form. However, Mr Lowa could not be reached. A voicemail message was left advising his application was still unpaid and incomplete. Mr Lowa was requested to contact the Commission by 3PM on 23 December 2022 to discuss his matter. Mr Lowa was advised that if payment was not received by 29 December 2022 the application may be dismissed.
To date Mr Lowa has not paid the required fee or completed a waiver form.
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.
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.
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, I order that the application is dismissed pursuant to s.587(1)(a) of the FW Act.
COMMISSIONER
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