Sumith Samaraeskara v Aquenta Consulting T/A Cost Consultants

[2013] FWC 6687

[2013] FWC 6687

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sumith Samaraeskara
v
Aquenta Consulting T/A Cost Consultants
(U2013/11972)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 11 SEPTEMBER 2013

Application for relief from unfair dismissal.

[1] On 26 July 2013, Mr Sumith Samaraeskara made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

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

[3] On 30 July 2013, Mr Samaraeskara 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 14 August 2013, the Fair Work Commission (the Commission) contacted Mr Samaraeskara in relation to the correspondence dated 30 July 2013. Mr Samaraeskara indicated he could not afford to pay the filing fee. On the same date an email was sent to Mr Samaraeskara, at his request, attaching the waiver application form and requesting that it be completed and returned.

[6] On 20 August 2013, Mr Samaraeskara was again contacted by telephone and was advised the waiver application still had not been received. He was cautioned that if the form was not completed and returned to the Commission by 21 August 2013 then the application may be dismissed.

[7] No response was received from Mr Samaraeskara 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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