Parveen Kumar v David Kahan

[2020] FWC 2238

[2020] FWC 2238

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Parveen Kumar
v
David Kahan
(U2020/2808)

COMMISSIONER BISSETT MELBOURNE, 1 MAY 2020

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

[1] On 10 March 2020, Mr Parveen Kumar made an application to the Fair Work Commission for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act).

[2] Mr Kumar did not pay the required fee. Mr Kumar did indicate in his application that he had completed a fee waiver however the fee waiver form was not attached to the application.

[3] On 12 March 2020 the Commission attempted to telephone Mr Kumar on his nominated telephone number to discuss payment. Mr Kumar did not answer the call and a voicemail message was left indicating that an email would be sent to him with respect to payment. Later that same day the Commission sent email correspondence to Mr Kumar’s nominated email address attaching a fee waiver form and advising that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application. The correspondence also warned that if he did not pay the application fee or make an application to have the fee waived within 14 days his application may be dismissed. An SMS was also sent to Mr Kumar on 12 March 2020 which sought a return call to discuss payment.

[4] On 8 April 2020, the Commission made a final attempt to contact Mr Kumar on his nominated telephone number. Mr Kumar did not answer the call. A voicemail message was left advising him that his application was at risk of being dismissed if payment or a completed fee waiver form was not received. He was asked to call the Commission as soon as possible.

[5] To date, Mr Kumar has not paid the required fee or filed a completed fee waiver form.

[6] 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.

[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 this 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, the application is dismissed pursuant to s.587(1)(a) of the Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

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