Paul Wroblewski v The Trustee for Unanderra Hotel Leasehold Unit Trust T/A Unanderra Hotel

[2018] FWC 2616

[2018] FWC 2616

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Wroblewski
v
The Trustee for Unanderra Hotel Leasehold Unit Trust T/A Unanderra Hotel
(U2018/2913)

DEPUTY PRESIDENT CLANCY MELBOURNE, 10 MAY 2018

Application for an unfair dismissal remedy.

[1] On 20 March 2018, Mr Paul Wroblewski made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The application form was filed by Mr Wroblewski’s legal representative and the form indicated that Mr Wroblewski would be making payment of the application fee.

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

[3] On 27 March 2018, the Fair Work Commission attempted to telephone Mr Wroblewski in relation to the outstanding application fee, however this was unsuccessful and a message was left advising that payment was required to be made. Following the phone call, email correspondence was sent to Mr Wroblewski, and his representative at Anderson Gray Lawyers, which confirmed his application had been made without payment of the application fee. Mr Wroblewski was advised he could apply to have the fee waived and an application for fee waiver was provided. It was also advised that if Mr Wroblewski did not pay the application fee or make an application to have the fee waived within 14 days, his application may be dismissed.

[4] On 5 April 2018, the Commission attempted to telephone Mr Wroblewski at the same telephone number used on 27 March 2018 where a message had been left on his voicemail service. However, the person who answered the telephone advised it was not a phone number for Mr Wroblewski.

[5] On 6 April 2018, the Commission telephoned Mr Wroblewski’s representative at Anderson Gray Lawyers and advised that Mr Wroblewski had not responded to the Commission’s attempts to contact him. It was further advised that he risked having his matter dismissed if payment was not made or an application for fee waiver was not received.

[6] On 20 April 2018, Mr Wroblewski telephoned the Commission and advised he was going to complete the application for fee waiver. Mr Wroblewski’s telephone number and email address were also confirmed with him. Mr Wroblewski telephoned the Commission again later the same day and advised he would pay the application fee on Monday 23 April 2018.

[7] On 30 April 2018, the Commission made a final attempt to telephone Mr Wroblewski in relation to the outstanding application fee and a message was left.

[8] 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.

[9] 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.

[10] 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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