Maria Camila Castro v Toni Mehigan

[2021] FWC 6346

[2021] FWC 6346

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Maria Camila Castro
v
Toni Mehigan
(U2021/9353)

COMMISSIONER BISSETT MELBOURNE, 16 NOVEMBER 2021

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

[1] On 17 October 2021 Mrs Maria Camila Castro 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).

[2] The application was incomplete in that Mrs Castro did not pay the required fee or file a completed waiver form. The legal name of the employer also appeared to be incorrect on the Form F2 and questions 1.3 and 1.4 were not completed in full.

[3] On 21 October 2021 the Commission attempted to contact Mrs Castro on her nominated telephone number to discuss payment of the required fee and the application being incomplete however, Mrs Castro did not answer the call. A voicemail message was left requesting she contact the Commission via telephone and leaving the Commissions telephone number.

[4] Later that day, the Commission emailed correspondence to Mrs Castro’s nominated email address advising that her application required payment of the filing fee or a completed waiver form if she 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.

[5] A final attempt to contact Mrs Castro was made by the Commission on 2 November 2021 to obtain payment or a completed waiver form and the requested information that was missing on the Form F2. The call was not answered, and a voicemail message was left requesting that she contact the Fair Work Commission urgently.

[6] To date there has been no response from Mrs Castro, the required fee has not been paid and a completed waiver form has not been received and the missing information has not been provided.

[7] 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.

[8] 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.

[9] 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 to this effect will be issued shortly.

COMMISSIONER

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