Sean McDonald v Noel McBride T/A Berwick Body Motor Repair

[2013] FWC 8364

[2013] FWC 8364

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sean McDonald
v
Noel McBride T/A Berwick Body Motor Repair
(U2013/13091)

COMMISSIONER WILSON MELBOURNE, 28 OCTOBER 2013

Application for relief from unfair dismissal.

[1] On 30 August 2013, an application under s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Mr Sean McDonald.

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

[3] On 2 September 2013, Mr McDonald was advised by email correspondence that his application required payment of the ($65.50) filing fee or a completed waiver form if he wished to proceed with his application.

[4] Section 395, 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.

[5] On 19 September 2013, further correspondence was sent to Mr McDonald and a voice message was left also left on Mr McDonald’s telephone phone advising that the Commission was awaiting payment. No response has been received from Mr McDonald and payment of the required fee has not been made.

[6] 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.

[7] 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.

COMMISSIONER

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