Hayden Penfold v Platinum Hygiene Pty Ltd T/A Platinum Hygiene
[2018] FWC 6550
•24 OCTOBER 2018
| [2018] FWC 6550 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Hayden Penfold
v
Platinum Hygiene Pty Ltd T/A Platinum Hygiene
(U2018/2209)
| Deputy President Clancy | MELBOURNE, 24 OCTOBER 2018 |
Application for an unfair dismissal remedy.
On 2 March 2018, Mr Hayden Penfold made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth) (the Act).
In his Form F2 – Unfair Dismissal Application, Mr Penfold noted in the ‘payment options’ section that he had completed the application for fee waiver and had attached it to his application. However, the application for fee waiver was not attached.
On 5 March 2018, an attempt was made to telephone Mr Penfold in relation to the missing fee waiver documentation. There was no answer and no opportunity to leave a voicemail message. Email correspondence was then sent to Mr Penfold requesting details of a contact person and email address at Platinum Hygiene and an application for fee waiver was also provided. Mr Penfold was advised if he did not pay the application fee or make an application to have the fee waived within 14 days, his application may be dismissed.
On 15 and 22 March 2018, further attempts to contact Mr Penfold via telephone were made, however these were unsuccessful and no voicemail message was able to be left.
On 29 March 2018, the Commission again attempted to telephone Mr Penfold, though on this occasion it appeared the phone number had been disconnected.
On 9 October 2018, a voicemail message was successfully left for Mr Penfold and a return call was sought. Email correspondence was then sent to Mr Penfold advising if he wished to proceed with his application, he was required to provide a completed application and fee payment or application for fee waiver by close of business, 11 October 2018. Mr Penfold was advised if he wished to discontinue his application, he could file a Notice of Discontinuance (which was attached to the email) or telephone the Commission to discontinue.
To date, Mr Penfold has not responded to the Commission’s correspondence.
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.”
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.”
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, Mr Penfold’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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