Jagua Ryland v Birrunga Gallery and Dining T/A Birrunga Gallery and Dining

[2020] FWC 5266

[2020] FWC 5266

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jagua Ryland
v
Birrunga Gallery and Dining T/A Birrunga Gallery and Dining
(U2020/12064)

COMMISSIONER BISSETT MELBOURNE, 1 OCTOBER 2020

Application for an unfair dismissal remedy.

[1] On 8 September 2020 Mr Jagua Ryland made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The application was incomplete in that Mr Ryland did not pay the required fee or file a completed waiver form. Mr Rylan submitted a blank waiver form.

[3] On 8 September 2020 the Commission attempted to contact Mr Ryland on his nominated telephone number to discuss payment of the required fee. However, Mr Ryland did not answer the call. A voicemail message was left requesting Mr Ryland to complete the waiver form and return it to the Commission.

[4] Later that day, the Commission emailed correspondence to Mr Ryland’s nominated email address advising that his application required payment of the filing fee or a completed waiver form if he wished to proceed with the application. That correspondence also warned that if payment was not made or a waiver form was not received within 14 days, the application may be dismissed.

[5] On 22 September 2020 the Commission contacted Mr Ryland on his nominated telephone number to discuss payment of the required fee. The Commission advised Mr Ryland that the filing fee or completed waiver was still outstanding and the application would not proceed until either the filing fee had been paid or a completed fee waiver form received. The Commission advised Mr Ryland of the timeframe in which to pay the fee or complete the waiver. Mr Ryland advised he understood the timeframe in place and would pay the filing fee or submit a completed fee waiver form by 23 September 2020.

[6] A final attempt to contact Mr Ryland was made by the Commission on 23 September 2020 to obtain payment or a completed waiver form. The call was not answered and a voicemail message was left advising Mr Ryland that payment of the required fee was still outstanding.

[7] Section 395 of the FW Act, which deals with application fees, provides as follows:

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.

[8] Section 587(1) of the FW 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] To date there has been no response from Mr Ryland, neither the required fee has not been paid and a completed waiver form has not been received.

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

COMMISSIONER

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