Giarne Sawka v Strokers No 7 Pty Ltd T/A Subway San Remo

[2019] FWC 3503

[2019] FWC 3503

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Giarne Sawka
v
Strokers No 7 Pty Ltd T/A Subway San Remo
(U2019/2834)

DEPUTY PRESIDENT DEAN SYDNEY, 23 MAY 2019

Application for an unfair dismissal remedy.

[1] On 14 March 2019, Miss Giarne Sawka made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Miss Sawka’s application was accompanied by a waiver application which was incomplete.

[3] On 15 March 2019 the Commission telephoned Miss Sawka and left a voice mail message advising that her application required payment of the filing fee or a completed waiver form if she wished to proceed with her application. She was further advised that the waiver form accompanying her application was incomplete as section B had not been completed.

[4] On 18 March 2019 a further attempt was made to contact Miss Sawka. On the same date Miss Sawka was sent written correspondence requiring her to advise the Commission within 14 days whether she wished to proceed with her application. A waiver application form was sent to Miss Sawka’s nominated email address for her to complete and return to the Commission. Ms Sawka did not respond and did not send a completed waiver application.

[5] Section 395, 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.

[6] Further attempts were made to contact Miss Sawka on 8 April 2019 and 14 May 2019 without success. No response was received from Miss Sawka and payment of the required fee has not been made.

[7] 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.

[8] Having regard to the circumstances of this matter, I am satisfied that as the application was not accompanied by the fee prescribed by the Act, the application was not made in accordance with the Act. As such, the application is dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued.

DEPUTY PRESIDENT

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