Luke James Vidito v Austral Tree Services Pty Ltd

[2022] FWC 2885

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Luke James Vidito
v

Austral Tree Services Pty Ltd

(U2022/9912)

COMMISSIONER BISSETT

MELBOURNE, 28 OCTOBER 2022

Application for an unfair dismissal remedy – unpaid application – dismissal under s.587 at the Commission’s initiative

On 10 October 2022 Mr Luke James Vidito 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 Vidito did not pay the required fee or file a completed waiver form.

On 11 October 2022 the Commission emailed correspondence to Mr Vidito’s nominated email address advising that their 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 was not made or a waiver form was not received within 7 calendar days, the application may be dismissed.

On 19 October 2022 the Commission emailed correspondence to Mr Vidito’s nominated email address reminding 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 was not made or a waiver form was not received, the application may be dismissed.

A final attempt to contact Mr Vidito on his nominated telephone number was made by the Commission on 25 October 2022 to obtain payment or a completed waiver form. The call was not answered, and a voicemail message was left advising Mr Vidito that payment of the required fee was still outstanding.

To date there has been no response from Mr Vidito, 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 shortly.

COMMISSIONER

[1] PR747298

Printed by authority of the Commonwealth Government Printer

The Fair Work Commission was asked to consider an application for an unfair dismissal remedy by Mr Luke James Vidito against Austral Tree Services Pty Ltd. The application was brought under section 394 of the Fair Work Act 2009. Mr Vidito alleged he was unfairly dismissed by his employer, Austral Tree Services. However, the application was incomplete because the required filing fee was not paid and a completed waiver form was not submitted. Despite multiple attempts by the Commission to contact Mr Vidito to rectify this, he did not respond, and the required fee and waiver form were never received.

The legal issues the court had to decide were whether the application was properly made and if it could proceed under section 394 of the Fair Work Act. Specifically, the court had to determine if the application could be dismissed under section 587(1)(a) of the Act because it was not made in accordance with the Act due to the missing fee and waiver form. The court also had to consider whether the application was frivolous or vexatious, or if it had no reasonable prospect of success, as per section 587(1)(b) and (c) of the Act.

The Commission found that the application was not made in accordance with the Act as it was not accompanied by the prescribed fee. Given the repeated warnings and lack of response from Mr Vidito, the Commission was satisfied that the application was not properly made. Consequently, the application was dismissed under section 587(1)(a) of the Act. The Commission decided that the application was not frivolous or vexatious, and there was no need to consider whether it had no reasonable prospect of success. An order dismissing the application will be issued.

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