Michael John Araco v Coles Supermarkets Australia Pty Ltd

[2022] FWC 3310

[2022] FWC 3310

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Michael John Araco
v

Coles Supermarkets Australia Pty Ltd

(U2022/11225)

COMMISSIONER BISSETT MELBOURNE, 23 DECEMBER 2022

Application for an unfair dismissal remedy

1. On 23 November 2022 Mr Michael John Araco 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).

1. Mr Araco did not provide the date that he commenced employment with Coles Supermarkets Australia Pty Ltd in the Form F2 Unfair Dismissal Application (Form F2) but advised he was notified of his dismissal on 2 November 2022.

1. On 25 November 2022 the Commission contacted Mr Araco on his nominated telephone number. Mr Araco confirmed that his employment with Coles Supermarkets Australia Pty Ltd began in either August or September 2022 and the Commission advised Mr Araco that he had not served the minimum employment period. Mr Araco acknowledged this but requested that the Commission continue with the Form F2.

1. Later that day the Commission emailed correspondence to Mr Araco’s nominated email address advising Mr Araco that, on the basis of the information provided in the Form F2, he had not served the minimum employment period. The correspondence directed Mr Araco to file any documents or other evidence to support his claim that he had served the required minimum employment period and also advised that the application required payment of the filing fee or a completed waiver form. That correspondence also warned that if he did not contact the Commission within 14 days the application may be dismissed without further notice.

1. As the Applicant had indicated he wished to continue with his application on 29 November 2022 the Commission attempted to contact Mr Araco on his nominated telephone number to discuss payment of the required fee. A voicemail message was left advising that the Form F2 required payment of the filing fee or a completed waiver form if he wished to proceed with the application.

1. A final attempt to contact Mr Araco was made by the Commission on 7 December 2022 to obtain payment or a completed waiver form. The call was not answered and a voicemail message was left advising Mr Araco that payment of the required fee was still outstanding.

1. To date Mr Araco has not replied to the Commission’s correspondence and has not paid the required fee or completed a waiver form.

1. 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.

1. 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.

1. In the circumstances where Mr Araco has failed to pay the filing fee or provide a waiver form I have determined that his application was not made in accordance with the FW Act and has no reasonable prospect of success

1. As such, I order that the application be dismissed under s.587(1)(a) of the FW Act.

COMMISSIONER

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