Kon Ftinogiannis v JP Pistons

[2022] FWC 778

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Kon Ftinogiannis
v

JP Pistons

(U2022/3171)

COMMISSIONER BISSETT

MELBOURNE, 7 APRIL 2022

Application for relief from unfair dismissal – incomplete application – dismissal under s.587 at the Commission’s initiative.

On 15 March 2022 Mr Kon Ftinogiannis 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).

The application was incomplete in that Mr Ftinogiannis did not pay the required fee or file a completed waiver form.

On 16 March 2022 the Commission attempted to contact Mr Ftinogiannis on his nominated telephone number to discuss payment of the required fee however, Mr Ftinogiannis did not answer the call. A voicemail message was left requesting Mr Ftinogiannis contact the Commission to discuss payment.

Later that day, the Commission emailed correspondence to Mr Ftinogiannis’s nominated email address advising that their application required payment of the filing fee or a completed waiver form if they 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.

A final attempt to contact Mr Ftinogiannis was made by the Commission on 28 March 2022 to obtain payment or a completed waiver form. The call was not answered and a voicemail message was left advising Mr Ftinogiannis that payment of the required fee was still outstanding.

To date there has been no response from Mr Ftinogiannis, the required fee has not been paid and a completed waiver form has not been received.

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.

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.

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 with this decision.

COMMISSIONER

[1] PR740116.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Kon Ftinogiannis applied for relief from unfair dismissal against his former employer, JP Pistons. The application was dismissed because it was incomplete and did not include the required filing fee or a completed waiver form. Despite attempts by the Commission to contact Mr Ftinogiannis to rectify this, he did not respond. Consequently, the Commission dismissed the application under section 587 of the Fair Work Act, finding it did not comply with the Act due to the missing fee.

The central legal issue in this case was whether the Fair Work Commission had the authority to dismiss the application for unfair dismissal on the grounds that it was not accompanied by the required fee and did not include a completed waiver form. The Commission considered whether the failure to pay the fee or file the waiver form constituted a non-compliance with the Fair Work Act, which would permit the dismissal of the application. The Commission also had to determine whether the application was frivolous, vexatious, or had no reasonable prospect of success, as per section 587(1) of the Act.

The Commission found that the application was not made in accordance with the Fair Work Act because it was not accompanied by the prescribed fee. It was not necessary to determine if the application was frivolous, vexatious, or had no reasonable prospect of success. Commissioner Bissett concluded that the application was dismissed as it did not comply with the Act due to the missing fee. The dismissal was pursuant to section 587(1)(a) of the Fair Work Act, and an order was issued accordingly.

The Fair Work Commission dismissed the application for unfair dismissal by Kon Ftinogiannis against JP Pistons. The dismissal was based on the application's failure to include the required fee or a completed waiver form, as mandated by the Fair Work Act. The Commission held that the application did not comply with the Act, leading to its dismissal under section 587(1)(a). An order was made to this effect.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established