Rikki Nye v Black Toyota

[2019] FWC 7884

[2019] FWC 7884

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rikki Nye
v
Black Toyota
(U2019/11332)

COMMISSIONER BISSETT MELBOURNE, 20 NOVEMBER 2019

Application for an unfair dismissal remedy.

[1] On 9 October 2019, Mrs Rikki Nye (Applicant) made an application to the Fair Work Commission (Commission) for remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The application form filed by the Applicant in the Commission was incomplete in that did not include payment of the required fee or a completed fee waiver form in accordance with s.395 of the FW Act.

[3] Section 395 of the FW 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.

[4] At 1:52pm on 10 October 2019, the Commission attempted to contact the Applicant on her nominated mobile telephone number regarding the unpaid filing fee. A voicemail message was left.

[5] At 2:09pm on 10 October 2019, the Commission emailed correspondence to the Applicant’s nominated email address which advised that her application required payment of the filing fee or a completed waiver form if she wished to proceed with her application.

[6] On 18 October 2019 and 24 October 2019 the Commission attempted to contact the Applicant on her nominated mobile telephone number. A voicemail message was left on both occasions.

[7] On 29 October 2019, the Commission attempted to contact the Applicant on her nominated mobile telephone number. A voicemail message was left advising the Applicant that her application may be dismissed if payment was not made or a fee waiver form was not received.

[8] To date, no response has been received from the Applicant. Payment of the required fee has not been made and a completed fee waiver form has not been filed with the Commission.

[9] 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 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 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 shortly.

COMMISSIONER

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