Mario Kingsley v Enzos Auto Electrics

[2020] FWC 6296

[2020] FWC 6296

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mario Kingsley
v
Enzos Auto Electrics
(U2020/14355)

COMMISSIONER BISSETT MELBOURNE, 24 NOVEMBER 2020

Application for an unfair dismissal remedy.

[1] On 2 November 2020, Mr Mario Kingsley 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 Mr Kingsley filed an incomplete waiver form.

[3] On 3 November 2020, the Commission contacted Mr Kingsley on his nominated mobile number to discuss his waiver application. The Commission advised Mr Kingsley that the waiver application was missing some information, Mr Kingsley confirmed he would send in a full waiver application as soon as possible.

[4] Later that day, the Commission emailed correspondence to Mr Kingsley’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.

[5] On 17 November 2020, the Commission contacted Mr Kingsley on his nominated mobile number to discuss his waiver application. The Commission advised Mr Kingsley that the waiver application had not been received, Mr Kingsley advised that if he had not already emailed the completed waiver to the Commission, he would do so that day.

[6] On 18 November 2020, the Commission attempted to contact Mr Kingsley on his nominated mobile number, however, Mr Kingsley did not answer the call. A voicemail message was left to discuss his waiver application.

[7] A final attempt to contact Mr Kingsley was made by the Commission on 19 November 2020 to obtain a completed waiver form or payment of the filing fee. Mr Kingsley apologised for not contacting us sooner, but he has been working and advised he would email the completed waiver form to the Commission immediately. Mr Kingsley was advised the if the waiver was not received today the matter may be dismissed without further notice.

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

[9] 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.

[10] 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.

[11] 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

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