Sonia La Spina v Coast Living

[2013] FWC 9152

[2013] FWC 9152

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sonia La Spina
v
Coast Living
(U2013/12967)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 25 NOVEMBER 2013

Application for relief from unfair dismissal dismissed.

[1] On 27 August 2013, Ms Sonia La Spina filed an application under s.394 of the Fair Work Act 2009 for relief from unfair dismissal.

[2] Ms La Spina advised that she commenced employment with Coast Living on 7 January 2013 and that her dismissal took effect on 22 April 2013.

[3] On 28 August 2013 and 25 September 2013, correspondence was sent to Ms La Spina pointing out that on the basis of the information contained in the application, she had not served the minimum employment period. The correspondence required Ms La Spina to advise the Fair Work Commission (the Commission) within 14 days whether she wished to proceed with her application.

[4] On 25 September 2013, the Commission received an email from Ms La Spina advising that she wished to continue with her application.

[5] On 26 September 2013, Ms La Spina was advised by email correspondence that her application required payment of the ($65.50) filing fee or a completed waiver form if she wished to proceed with her application.

[6] 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.”

[7] On 8 October 2013, the Commission attempted to contact Ms La Spina in relation to the correspondence dated 26 September 2013. This was followed by a letter on 9 October 2013. No response was received from Ms La Spina and payment of the required fee has not been made.

[8] 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.”

[9] 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.

DEPUTY PRESIDENT

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