Thomas James Marstella v Dale & Meyers Operations Pty Ltd Aft

[2022] FWC 1242

[2022] FWC 1242

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Thomas James Marstella
v

Dale & Meyers Operations Pty Ltd Aft

(U2022/4865)

COMMISSIONER O’NEILL MELBOURNE, 20 MAY 2022

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

1. On 28 April 2022, Mr Thomas James Marstella 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 Mr Marstella did not pay the required fee or file a completed waiver form.

1. On 2 May 2022, the Commission attempted to contact Mr Marstella on his nominated telephone number to discuss payment of the required fee however he did not answer the call. A voicemail message was left requesting that Mr Marstella to call back to make payment. The Commission also advised him that the application form was unsigned and a signed copy was still outstanding. This voice message followed up with an SMS sent requesting that Mr Marstella contact the Commission regarding an unpaid application fee.

1. Later that day, the Commission emailed correspondence to Mr Marstella’s nominated email address advising that his application required payment of the filing fee or a completed waiver form if they wished to proceed with the application. That 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 Mr Marstella was made by the Commission on 17 May 2022 to obtain payment or a completed waiver form. The call was not answered and there was no ability to leave a voice message. A second attempt was made later the same day, but again there was no answer and no ability to leave a voice message.

1. To date there has been no response from Mr Marstella, 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 prospect 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 to this effect will be issued shortly.

COMMISSIONER

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