Loday Jamtsho v Natasa Harambasic

[2019] FWC 8406

[2019] FWC 8406

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Loday Jamtsho
v
Natasa Harambasic
(U2019/12031)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 12 DECEMBER 2019

Application for relief from unfair dismissal.

[1] On 29 October 2019, Mr Loday Jamtsho (the Applicant) made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act).

[2] The Applicant did not pay the required fee upon lodgement.

[3] Section 395 of the FW 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.”

[4] Further, the application appears to identify a sole trader, ‘Natasa Harambasic’, as the Respondent employer. In the state of Western Australia the Fair Work Commission (the Commission) has not had its jurisdiction expanded to include such employers by referring legislation, and these employers are not captured by the definition of a ‘National System Employer’ (NSE) in section 14 of the FW Act.

[5] On 29 October 2019, the Fair Work Commission (the Commission) attempted to contact the Applicant by telephone, however they did not answer, and no voicemail facilities were available. A follow up letter was sent by email requesting the Applicant pay the application fee and notifying the Applicant that their employer may not be an NSE.

[6] The email letter advised that employees who were not employed by an NSE are ineligible to make an application for an unfair dismissal remedy. The Applicant was directed to advise the Commission within 14 days whether they wished to proceed with their application.

[7] On 15 November 2019, the Commission telephoned the Applicant, but they did not answer. A detailed voice message was left explaining that the Commission was calling in relation to the correspondence emailed on 29 October 2019 and that the matter may be referred to a Member of the Commission for decision. The Commission sent further correspondence by email advising that payment of the fee was required, and that based on the information provided, the Commission may not have jurisdiction to deal with the application.

[8] On 6 December 2019 a final telephone call was made to the Applicant but was unanswered. A voice message was left to advise that the matter was now being referred to a Member of the Commission.

[9] 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.”

[10] Having regard to the circumstances, I am satisfied that as the prescribed fee has not been paid the application was not made in accordance with the FW Act. Furthermore, the application is likely outside the jurisdiction of the Commission as the Respondent is not an NSE. The application accordingly is dismissed under section 587(1)(a) and (c) of the FW Act.

[11] An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR715170>