Gilbert Tan v Forest Lake Lodge

[2013] FWC 5651

[2013] FWC 5651

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Gilbert Tan
v
Forest Lake Lodge
(U2013/11765)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 13 AUGUST 2013

Application for unfair dismissal remedy dismissed pursuant to s.587(1)(a) of the Fair Work Act 2009.

[1] On 22 July 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Mr Gilbert Tan (the Applicant).

[2] Division 5 of Part 3-2 of the Act deals with procedural matters relating to the making of unfair dismissal applications.

[3] 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.

[4] Regulation 3.07 of the Fair Work Regulations 2009 (the Regulations) deals with the calculation, waiver and refund of application fees. Relevantly, Regulation 3.07(7) provides for the waiver of fees if the Commission is satisfied a person will suffer serious hardship.

[5] The Application was not accompanied by the required fee worked out in accordance with the Regulations.

[6] On 23 July 2013 the Applicant was advised by email correspondence that their application required payment of the ($65.50) filing fee or a completed waiver form if they wished to proceed with their application. It was noted in the email sent by the Registry that the Applicant had advised on his application, by email sent 22 July 2013, that a cheque would be sent later. On 2 August 2013 the Applicant was telephoned twice (once on landline phone and once on mobile phone) and on both occasions messages were left for the Applicant to contact the Registry regarding his non payment of the application as a matter of priority. To date, no response has been received from the Applicant.

[7] Section 587 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.

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.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[8] Having regard to the circumstances of this matter, I am satisfied that as the Application has not been accompanied by the fee prescribed by the Regulations and as such the Application was not made in accordance with the Act . The Application shall be 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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