Justin Manning v Elmsleigh Poultry Transport Pty Ltd

[2014] FWC 6117

[2014] FWC 6117

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Justin Manning
v
Elmsleigh Poultry Transport Pty Ltd
(U2014/4068)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 15 SEPTEMBER 2014

Application for relief from unfair dismissal.

[1] On 24 January 2014, Mr Justin Manning made an application, by telephone, for remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

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

[3] On 29 January 2014, Mr Manning was advised by written correspondence that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application. That correspondence further indicated that if he wished to proceed with his application he must return the signed and completed form within fourteen (14) days.

[4] On 17 February 2014, Mr Manning provided a completed application form and a money order in payment of the lodgement fee. The provided money order was made out correctly in the name of the Fair Work Commission, however the money order received had the words ‘to whom it may concern’ handwritten in. The instructions on all money orders state that it must be ‘issued without alteration - void if altered’. Consequently this additional handwritten wording rendered the money order void.

[5] On 19 February 2014, the money order was returned to Mr Manning via written correspondence, explaining the situation and requesting Mr Manning have a new money order drawn up and sent to the Fair Work Commission as soon as possible. The letter also stated that in the absence of any advice from him within 10 days from the date of this letter, this application may be dismissed.

[6] Two phone messages were left for Mr Manning on 15 and 16 July 2014. On 16 July 2014 Mr Manning advised that he would send a money order that day. No money order was received.

[7] On 8 August 2014, further correspondence was sent to Mr Manning advising the lodgement fee had not been paid.

[8] No response was received from Mr Manning and payment of the required fee has not been made.

[9] 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.

[10] 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.

[11] 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 giving effect to this decision will be issued shortly.

DEPUTY PRESIDENT

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