Luke Barker v J I Office and Education
[2022] FWC 410
•1 MARCH 2022
| [2022] FWC 410 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal remedy
Luke Barker
v
J I Office And Education
(U2022/1627)
| cOMMISSIONER bISSETT | MELBOURNE,1 march 2022 |
Application for an unfair dismissal remedy – unpaid application – dismissal under s.587 at the Commission’s initiative.
On 7 February 2022, Mr Luke Barker (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).
The application was incomplete in that the Applicant did not pay the required fee or file a completed fee waiver form.
On 8 February 2022, the Commission attempted to contact the Applicant on his nominated telephone number to discuss payment of the required fee however, the Applicant did not answer the call. A voicemail message was left requesting Applicant contact the Commission to make payment.
Later that day, the Commission emailed correspondence to 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 the 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.
On 21 February 2022 the Commission made a final attempt to contact the Applicant on his nominated telephone number to obtain payment or a completed fee waiver form however the Applicant could not be reached. A voicemail message was left advising the Applicant that payment of the required fee was still outstanding and that the application was at risk of being dismissed if he did not contact the Commission.
To date, the required fee has not been paid and a completed fee 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 as follows:
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.
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] PR738787
Printed by authority of the Commonwealth Government Printer
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