Justin Faulkner v Alcoa of Australia Limited

[2022] FWC 111

[2022] FWC 111

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 – Unfair Dismissal

Justin Faulkner

v

Alcoa of Australia Limited

(U2021/12260)

cOMMISSIONER bISSETT MELBOURNE, 25 JANUARY 2022

Application for an unfair dismissal remedy - failure to pay filing fee – dismissal under s.587 at the Commission’s initiative.

1. On 24 December 2021, Mr Justin Faulkner (Applicant) 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).

1. The application made by the Applicant was incomplete in that it did not include payment of the required fee or a completed waiver form in accordance with s.395 of the FW Act.

1. On 30 December 2021, the Commission attempted to contact the Applicant on his nominated telephone number to discuss payment however, the Applicant did not answer the call. A voicemail message was left requesting payment of the filing fee.

1. Later that day, the Commission emailed correspondence to the Applicant’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 his application. That correspondence also warned that, if payment is not made or a waiver form is not received within 14 days, the application may be dismissed. 

1. On 18 January 2022, the Commission made a final attempt to contact the Applicant to obtain payment or a completed waiver form. The Applicant did not answer the call. A voicemail message was left advising the Applicant that payment of the required fee was still outstanding.

1. To date, the required fee has not been paid and a completed fee waiver form has not been received.

1. 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.

1. 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 prospect of success.

1. 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

[1] PR737674

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