Ruben Dimoski v Adam

[2023] FWC 1088

[2023] FWC 1088

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ruben Dimoski
v

Adam

(U2023/3099)

COMMISSIONER BISSETT MELBOURNE, 19 MAY 2023

Application for an unfair dismissal remedy

1. On 11 April 2023 Mr Ruben Dimoski made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

1. The application was incomplete in that Mr Dimoski did not pay the required fee or file a completed waiver form.  The application was also unsigned and a question arose as to whether the correct legal name of the employer had been provided.

1. On 18 April 2023 the Commission attempted to contact Mr Dimoski on their nominated telephone number to discuss the incomplete application and the payment of the required fee however the call was disconnected. The Commission attempted to call Mr Dimoski again on their nominated telephone number but the call was not answered. A voicemail message was left advising that the Commission had received an incomplete application and that further details about the application and filing fee would be emailed to Mr Dimoski’s nominated email address.

1. Later that day the Commission emailed correspondence to Mr Dimoski’s nominated email address advising that their application was incomplete and required payment of the filing fee or a completed waiver form if they wished to proceed with the application. That correspondence also warned that, if payment is not made or a waiver form is not received within 14 days, the application may be dismissed.  An SMS notification was also sent to Mr Dimoski’s nominated telephone number advising that there was a problem with their application and requesting they contact the Commission.

1. On 21 April 2023 the Commission received an amended application from Mr Dimoski. However, Mr Dimoski did not pay his filing fee or provide a completed waiver form.

1. Another attempt to contact Mr Dimoski was made by the Commission on 1 May 2023 to obtain payment or a completed waiver form. Mr Dimoski was unaware that the application had a filing fee and advised that he would consider the fee waiver form.

1. On 9 May 2023 the Commission emailed Mr Dimoski on his nominated email address reminding him that the application required payment of the filing fee or a completed waiver form if they wished to proceed with their application. That correspondence also warned that the application could be dismissed if payment is not made or a waiver form is not received by 4pm 11 May 2023.

1. A final attempt to contact Mr Dimoski on their nominated telephone number was made by the Commission on 11 May 2023 to obtain payment or a completed waiver form. The call was not answered. A voicemail message was left advising Mr Dimoski that payment of the required fee was still outstanding.

1. To date Mr Dimoski has not paid the required fee or completed a waiver form.

1. Section 395 of the FW Act, which deals with application fees, provides as follows:

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.

1. 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 prospect of success.

1. 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.

COMMISSIONER

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