Jacob Galea v Sapp Products Pty Ltd

[2019] FWC 5728

[2019] FWC 5728

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jacob Galea
v
Sapp Products Pty Ltd
(U2019/7770)

DEPUTY PRESIDENT DEAN SYDNEY, 19 AUGUST 2019

Application for an unfair dismissal remedy – fee not paid and minimum employment period not served – application dismissed.

[1] On 15 July 2019, Mr Jacob Galea made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Galea did not pay the required fee and did not appear to have served the minimum employment period.

[2] Mr Galea’s application states that he commenced employment with Sapp Products Pty Ltd on 21 January 2019 and that he was notified of his dismissal on 12 July 2019.

[3] Section 383 of the Act sets out the minimum employment period:

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

[4] 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.

[5] On 17 July 2019, correspondence was sent to Mr Galea pointing out that on the basis of the information contained in the application, he had not served the minimum employment period and that his application required payment of the filing fee or a completed waiver form. The correspondence required Mr Galea to advise the Commission within 14 days whether he wished to proceed with his application. No response was received from Mr Galea.

[6] On 9 August 2019 correspondence was sent to Mr Galea allowing a further 7 days to reply. He was advised that in the absence of a reply, his application may be dismissed.

[7] Mr Galea did not reply to that correspondence. A final attempt to contact him was made on 16 August 2019 without success.

[8] 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.

[9] 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. I am further satisfied that Mr Galea has not completed the required minimum employment period and accordingly his application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to that effect will be issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR711413>