Francis Larkin v Allied Seafreight Logistics

[2019] FWC 8394

[2019] FWC 8394

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Francis Larkin
v
Allied Seafreight Logistics
(U2019/11972)

COMMISSIONER BISSETT MELBOURNE, 11 DECEMBER 2019

Application for an unfair dismissal remedy – dismissal under s.587 at the Commission’s initiative.

[1] On 25 October 2019, Ms Francis Larkin (Applicant) made an application to the Fair Work Commission (Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act). The covering email to the application said “[s]hould you wish to contact me regarding payment please call my mobile [telephone number provided].”

[2] The Applicant did not pay the required fee.

[3] On 28 October 2019 the Commission attempted to telephone the Applicant on the telephone number provided in her application to request payment. The Applicant did not answer her phone and there was no provision to leave a voicemail message.

[4] Subsequently on 28 October 2019 correspondence was sent to the Applicant’s nominated email address advising her that her application required payment of the filing fee or a completed waiver form if she wished to proceed with her application. The correspondence also advised that if the Applicant did not pay the application fee or make an application to have the fee waived within 14 days of the date of the letter, her application may be dismissed.

[5] 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.

[6] On 7 November 2019 the Commission unsuccessfully attempted to contact the Applicant by telephone to request payment of the filing fee or a completed waiver form. A voicemail message was left requesting a return call. The Applicant did not respond to this request.

[7] On 15 November 2019 the Commission again attempted to call the Applicant to discuss payment. The Applicant did not answer the call. A voicemail message was left for the Applicant to contact the Commission. No response was received.

[8] On 5 December 2019 the Commission made a further attempt to contact the Applicant but was unsuccessful.. A voicemail message was left for the Applicant to contact the Commission in regard to her application. The Applicant did not return the Commission’s call.

[9] To date, no response has been received from the Applicant and payment of the required fee has not been made.

[10] Section 587(1) of the FW Act provides that:

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.

[11] 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 Applicant’s application is dismissed pursuant to s.587(1)(a) of the FW Act. An Order 1 to this effect will be issued with this decision.

COMMISSIONER

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