Michael Kyriakou v Am Concrete Pty Ltd

[2022] FWC 595

[2022] FWC 595

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Michael Kyriakou
v

AM Concrete Pty Ltd

(U2022/1217)

COMMISSIONER BISSETT MELBOURNE, 17 MARCH 2022

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

1. On 28 January 2022, Mr Michael Kyriakou 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). Mr Kyriakou alleged she was unfairly dismissed by AM Concrete Pty Ltd on 22 December 2021.

1. The application was incomplete in that Mr Kyriakou did not pay the required fee or file a completed waiver form.

1. On 31 January 2022 the Commission attempted to contact Mr Kyriakou via telephone to discuss payment of the required fee however, the phone number provided for Mr Kyriakou was disconnected. The Commission attempted to call the applicant’s representative but there was no answer.

1. Later that day, the Commission emailed correspondence to both Mr Kyriakou and his representative Mr Karipidis’s at their respective nominated email addresses, advising that the application required payment of the filing fee or a completed waiver form if Mr Kyriakou wished to proceed with the application. That correspondence also warned that if payment was not made or a waiver form was not received within 14 days, the application may be dismissed. 

1. A final attempt to contact Mr Karipidis was made by the Commission on 16 February 2022 to obtain payment or a completed waiver form. The call was not answered and a voicemail message was left advising Mr Karipidis that payment of the required fee was still outstanding and to call the Commission before close of business 17 February 2021. The matter number and contact phone number for the Commission were also provided on the voicemail message.

1. To date there has been no response from Mr Kyriakou or his representative Mr Karipidis, the required fee has not been paid and a completed waiver form has not been received.

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. 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 with this decision.

COMMISSIONER

[1] PR739401.

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