Tony Chirichiello v Australia Fruits

[2019] FWC 877

[2019] FWC 877

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tony Chirichiello
v
Australia Fruits
(U2018/12288)

DEPUTY PRESIDENT CLANCY MELBOURNE, 12 FEBRUARY 2019

Application for an unfair dismissal remedy.

[1] On 28 November 2018, Mr Tony Chirichiello made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Chirichiello noted on his Form F2 – Unfair dismissal application (Form F2) that he was being represented by Ms Julie Andritsos.

[2] Mr Chirichiello filed an application for fee waiver with his Form F2, however this document was incomplete.

[3] On 29 November 2018, the Commission sent correspondence to Mr Chirichiello via email and post advising that questions four to six on the application for fee waiver had not been completed. It was noted that if a completed form was not received within 14 days, his application may be dismissed.

[4] As no response was received, on 20 December 2018 a telephone call was made to Mr Chirichiello who advised he had not received the email correspondence. Mr Chirichiello’s email address was then updated and the correspondence was re-sent to him. Mr Chirichiello was provided a further 14 days to return a completed application for fee waiver.

[5] On 7 January 2019, an attempt was made to telephone Mr Chirichiello in relation to the outstanding application for fee waiver, however this was unsuccessful and a voicemail was left seeking a return call.

[6] On 15 January 2019, further correspondence was sent to Mr Chirichiello via email and post, and also to his representative, Ms Andritsos. The correspondence noted if Mr Chirichiello did not pay the required fee or apply to have the fee waived, his application may be dismissed. On the same day, Ms Andritsos responded to the Commission and advised she was not acting in the matter.

[7] On 18 January 2019, a further attempt was made to contact Mr Chirichiello via telephone and a voicemail was left seeking a return call. An email was again sent which advised if Mr Chirichiello wished to proceed with his application, payment of the application fee would need to be made or a competed application for fee waiver returned. It was noted if he did not wish to pursue his matter, he should advise the Commission as soon as possible.

[8] On 22 January 2019, Ms Andritsos emailed the Commission and advised she would attempt to contact Mr Chirichiello and seek his instructions as to whether he wished for her to act for him and would provide the fee waiver form to him for completion and return to the Commission. Later that day, there was an attempt to contact Ms Andritsos via telephone and a message was left for her return call.

[9] On 23 January 2019, further correspondence was sent to Ms Andritsos and Mr Chirichiello in relation to the outstanding application fee.

[10] On 24 January 2019, another attempt was made to contact Mr Chirichiello via telephone and a voicemail was left for his return call. An email was again sent to Mr Chirichiello and Ms Andritsos noting if payment of the application fee was not received or a completed application for fee waiver, Mr Chirichiello’s application may be dismissed.

[11] On 25 January 2019, Ms Andritsos sent an email to the Commission confirming she was unaware Mr Chirichiello had referenced her as his representative and she sought that the file be held until she had an opportunity to contact Mr Chirichiello.

[12] On 4 February 2019, the Commission sent email correspondence to Mr Chirichiello and Ms Andritsos noting the file would be referred to a Member of the Commission. Ms Andritsos replied on the same day advising she had been attempting to contact Mr Chirichiello and requested the file be held until the end of the week so she could continue to attempt to contact him.

[13] To date, Mr Chirichiello has not responded to the Commission’s correspondence and the application fee remains outstanding.

[14] Section 395 of the Act, 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.”

[15] 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.”

[16] The Commission has left four voicemails for Mr Chirichiello and sent correspondence via email and/or post to him on seven occasions regarding the outstanding application fee. Mr Chirichiello has been afforded many opportunities to make contact with the Commission and to provide a completed application for fee waiver, however he has failed to do so.

[17] 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, Mr Chirichiello’s 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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