Robert Visscher v Ludowici Australia Pty Ltd T/A FLSmidth Ludowici Australia Pty Ltd

[2014] FWC 4384

[2014] FWC 4384

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Visscher
v
Ludowici Australia Pty Ltd T/A FLSmidth Ludowici Australia Pty Ltd
(U2014/1888)

COMMISSIONER WILSON MELBOURNE, 15 JULY 2014

Application for relief from unfair dismissal.

[1] On 28 May 2014, Mr Robert Visscher made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Visscher did not pay the required fee but completed an application for waiver of filing fee. The application for waiver of filing fee was not complete and was not signed or dated.

[3] On 28 May 2014, the Commission sent correspondence to Mr Visscher requesting him to complete the application for waiver of filing fee. Mr Visscher was advised that failure to return his completed application for waiver of filing fee, within 14 days, would result in his application being dismissed.

[4] On 10 June 2014, the Commission telephoned Mr Visscher who advised he did not receive the email correspondence dated 28 May 2014. Following this advice, the Commission sent email correspondence to Mr Visscher with the application for waiver form to be completed, signed and dated.

[5] On 23 June 2014 and 27 June 2014, the Commission contacted Mr Visscher in relation to his waiver form. Mr Visscher advised he wanted to discuss his application with his partner before proceeding. He was advised, once again, that in the absence of any advice from him, his application may be dismissed.

[6] No response has been received from Mr Visscher and payment of the required fee has not been made.

[7] 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.

[8] Having regard to the above, Mr Visscher has failed to pay the required fee.

[9] Section 587(1) of the 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.

[10] Having regard to the circumstances of this matter, I am satisfied that the application was not accompanied by the fee as prescribed by the Act and is therefore, not made in accordance with the Act. For this reason, the application is dismissed under s.587(1)(a) of the Act. An Order giving effect to this decision will be issued accordingly.

COMMISSIONER

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