Nilanka Atapattu v Woolworths Limited T/A B W S Werribee Plaza Drive Through (3758)

[2016] FWC 7895

[2016] FWC 7895

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nilanka Atapattu
v
Woolworths Limited T/A B W S Werribee Plaza Drive Through (3758)
(U2016/3285)

DEPUTY PRESIDENT CLANCY MELBOURNE, 31 OCTOBER 2016

Application for relief from unfair dismissal.

[1] On 7 July 2016, Mr Nilanka Atapattu made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Atapattu did not pay the required fee.

[3] On 8 July 2016, Mr Atapattu was advised by telephone and email that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application. Mr Atapattu was advised that the waiver form he had submitted with his application was incomplete. A new waiver form was emailed to Mr Atapattu.

[4] On 19 July 2016, the Fair Work Commission (Commission) telephoned Mr Atapattu regarding the waiver form. Mr Atapattu advised that he had not received the previous email. A new waiver form was emailed to Mr Atapattu.

[5] On 1 September 2016, a telephone call was made to Mr Atapattu to follow up the waiver form. He requested an email be sent to confirm what was required. An email was sent to Mr Atapattu advising the application was incomplete and that payment or a completed fee waiver form was required.

[6] On 28 September 2016, an email was sent to Mr Atapattu again noting that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application. He was advised in the absence of advice from him within 14 days, his application may be dismissed.

[7] On 29 September 2016, Mr Attapattu sent an email advising he would reply as soon as possible.

[8] To date, no completed fee waiver has been received and the application remains unpaid.

[9] Section 395 of the Act, which deals with application fees, provides:

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 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 Act, the application was not made in accordance with the Act. As such, the application is dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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