Segundo Asayac v Bayley House

[2022] FWC 2221

[2022] FWC 2221

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Segundo Asayac
v
Bayley House

(U2022/7823)

cOMMISSIONER bISSETT MELBOURNE, 19 AUGUST 2022

Application for relief from unfair dismissal– unpaid application – dismissal under s.587 at the Commission’s initiative.

1. On 26 July 2022, Mr Segundo Asayac (the Applicant) 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 the Applicant did not pay the required fee or file a completed waiver form.

1. The Form F2 – Unfair Dismissal Application filed by Ginny Adams of the Health Services Union (Applicant Representative) stated the Applicant may be contacted directly to collect payment of the application filing fee. On 27 July 2022, the Commission attempted to contact the Applicant on his nominated telephone number to discuss payment of the required fee. However, the Applicant did not answer the call. A voicemail message was left requesting he contact the Commission to pay the filing fee or submit a fee waiver application.

1. Later that day, the Commission emailed correspondence to the Applicant and his union representative’s nominated email addresses, advising that his application required payment of the filing fee or a completed waiver form if he wished to proceed with the application. The correspondence also warned that if payment is not made or a waiver form is not received within 14 days, the application may be dismissed.

1. A final attempt to contact the Applicant was made by the Commission on 16 August 2022. The call was unanswered. A voicemail message was left advising the Applicant payment of the required fee was still outstanding, and if left unpaid, the matter was at risk of being dismissed. The Commission also attempted to contact his representative to inform them that the matter is at risk of dismissal if someone does not urgently pay the fee. A message was left with the receptionist to relay on to the Applicant.

1. To date there has been no response from the Applicant or his representative, the required fee has not been paid and a completed waiver form has not been received.

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:

   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.

1. 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

[1] PR745006

Printed by authority of the Commonwealth Government Printer

<PR745005>