Francis Tovio v Smart Recycling T/A Waste Converters

[2019] FWC 4159

[2019] FWC 4159

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Francis Tovio
v
Smart Recycling T/A Waste Converters
(U2019/4740)

DEPUTY PRESIDENT CLANCY MELBOURNE, 18 JUNE 2019

Application for an unfair dismissal remedy.

[1] On 26 April 2019, Mr Francis Tovio made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Tovio attached an application for fee waiver, however the document was not completed.

[3] On 29 April 2019, the Commission attempted to telephone Mr Tovio in relation to the incomplete application for fee waiver. This was unsuccessful and no message bank was available to leave a voicemail message. On the same day, email correspondence was sent to Mr Tovio which advised that he could apply to have the application fee waived if paying the fee would cause him serious hardship. It was noted that if he did not pay the fee or apply to have the fee waived within 14 days, his application may be dismissed.

[4] On 10 May 2019, a second call attempt was made to Mr Tovio and a voicemail message was left seeking his return call.

[5] On 15 May 2019, Mr Tovio contacted the Commission and requested the fee waiver application be resent to him for completion. Email correspondence was sent to Mr Tovio on the same day attaching the fee waiver application and advising him that if he wished to proceed with his application he was required to pay the application fee or complete the fee waiver application within 7 days or his application may be dismissed.

[6] On 16 May 2019, Mr Tovio again contacted the Commission and requested the fee waiver application be resent to him. Email correspondence attaching the fee waiver application was sent to Mr Tovio on the same day.

[7] A further call attempt was made to Mr Tovio on 21 May 2019. The Commission was advised by the person who answered that Mr Tovio is no longer contactable on the mobile phone number provided on his application form. This person said he would try and get in contact with Mr Tovio and ask him to call the Commission.

[8] A final call attempt was made to Mr Tovio on 22 May 2019, the mobile phone number had been disconnected.

[9] To date, neither payment of the application fee nor a completed application for fee waiver has been received by the Commission.

[10] Section 395 of the Act, which deals with application fees, provides:

“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.”

[11] Section 587(1) of the Act provides:

“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.”

[12] Having regard to the above, I am satisfied the application was not made in accordance with the Act as Mr Tovio has not paid the required application fee nor been granted a fee waiver. As such, Mr Tovio’s application is dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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