Nicholas Zappacosta v Kane Construction

[2019] FWC 5852

[2019] FWC 5852

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nicholas Zappacosta
v
Kane Construction
(U2019/8060)

COMMISSIONER BISSETT MELBOURNE, 22 AUGUST 2019

Application for an unfair dismissal remedy.

[1] On 19 July 2019, Mr Nicholas Zappacosta made an application pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The application form filed by Mr Zappacosta in the Commission was incomplete in that Mr Nicholas Zappacosta did not lodge a fee waiver application and did not pay the required fee.

[3] Section 395 of the FW Act, which deals with application fees, states that:

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.

[4] On 23 July 2019, Mr Zappacosta was advised via telephone and via email that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application.

[5] Further attempts to contact Mr Zappacosta were made by telephone on 7 August 2019 and 15 August 2019 and voice messages were left on his phone on both occasions.

[6] Mr Zappacosta did not contact the Commission or provide the necessary details as requested.

[7] Section 587(1) of the FW Act provides as follows:

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 the FW Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

[8] 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, Mr Zappacosta’s 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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