James Malone v KNL Glass

[2017] FWC 328

[2017] FWC 328

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Malone
v
KNL Glass
(U2016/14131)

COMMISSIONER BISSETT MELBOURNE, 17 JANUARY 2017

Application for relief from unfair dismissal.

[1] On 27 November 2016, Mr James Malone made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Malone did not pay the required fee.

[3] On 28 November 2016, the Fair Work Commission attempted to contact Mr Malone on the telephone number provided in his application and a voicemail message was left. On the same date, correspondence was sent to Mr Malone advising that his application was incomplete and required payment of the filing fee or a completed waiver form and that in the absence of any advice from him within 14 days, his application may be dismissed.

[4] On 12 December 2016, the Commission again attempted to telephone Mr Malone, however this was unsuccessful and a voicemail message was left. On the same day, further correspondence was sent to Mr Malone advising the application remained unpaid and that in the absence of any advice from him within 14 days, his application may be dismissed.

[5] A final letter was sent on 3 January 2017 noting the application remained unpaid and that contact should be made to make payment or Mr Malone should submit an application for fee waiver. Mr Malone was advised in the absence of any advice from him within 14 days, his application may be dismissed.

[6] To date, there has been no response from Mr Malone and payment of the required fee has not been made.

[7] 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.

[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. As such, the application is dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

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