Samantha Santos v Verizon Wireless

[2023] FWC 387

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.773—Termination of employment

Samantha Santos
v

Verizon Wireless

(C2022/8385)

VICE PRESIDENT CATANZARITI

SYDNEY, 16 FEBRUARY 2023

Application to deal with an unlawful termination dispute

On 20 December 2022 Samantha Santos (the applicant) made an application to the Fair Work Commission pursuant to s.773 of the Fair Work Act 2009 (FW Act).

The application was incomplete in that the applicant did not pay the required fee or file a completed waiver form.
On the 21st of December 2022, the Commission attempted to contact the applicant on her nominated telephone number to discuss payment of the required fee, however the call was not answered.
Later that day, the Commission attempted to contact the applicant again advising her the application required payment of the filing fee or a completed waiver form if they wished to proceed with the application. The Commission left a voicemail also stating the jurisdictional issue that the applicant and respondent both reside in Arizona, United States of America.
A final attempt to contact the applicant was made by the Commission on the 25th of January 2023 to obtain payment or a completed waiver form. The applicant was advised that her application would be dismissed without any further notice, should the Commission not receive a response to the attempts made to contact her.

To date, the applicant has not paid the required fee or completed a waiver form, or responded to any of the attempts made to contact her.

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.

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.

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.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Samantha Santos filed an application under the Fair Work Act 2009 for the termination of her employment by Verizon Wireless. The application was lodged on 20 December 2022, but it was incomplete because the required fee had not been paid and a waiver form had not been filed. The Fair Work Commission made multiple attempts to contact Santos to request the missing fee or waiver form, but she did not respond to these attempts. The Commission ultimately decided to dismiss the application due to its incompleteness and lack of response to attempts to rectify the issue.

The legal issues the Commission needed to address included whether the application complied with the Fair Work Act, specifically s.395, which requires the payment of a prescribed fee, and s.587, which allows the dismissal of an application if it is not made in accordance with the Act. The Commission considered whether the application met the requirements set out in the Act and whether it had reasonable prospects of success.

The Commission concluded that the application did not comply with s.395 because it was not accompanied by the required fee. As a result, the application did not conform to the Act, and pursuant to s.587(1)(a), the application was dismissed. The Commission found that the application was incomplete and did not provide any reasonable prospect of success, leading to its dismissal.

The Fair Work Commission dismissed the application under s.587(1)(a) of the Fair Work Act, noting that the application did not comply with the Act due to the lack of payment of the required fee and the absence of a completed waiver form. The Commission did not receive any response from Santos to its attempts to contact her, further supporting the dismissal of the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established