Tony D'Amico v Midway Concrete and Garden Supplies

[2020] FWC 1987

[2020] FWC 1987

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tony D’Amico
v
Midway Concrete and Garden Supplies
(U2020/2560)

COMMISSIONER BISSETT MELBOURNE, 17 APRIL 2020

Application for an unfair dismissal remedy – dismissal under s.587 at the Commission’s initiative.

[1] On 4 March 2020, Mr Tony D’Amico made an application to the Fair Work Commission for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act).

[2] The application made by Mr D’Amico was incomplete in that it did not include payment of the required fee or a completed fee waiver form in accordance with s.395 of the FW Act.

[3] On 6 March 2020 the Commission telephoned Mr D’Amico on his nominated telephone number to discuss payment however Mr D’Amico did not answer the call. A voicemail message was left advising that payment of the application fee was still outstanding and requesting Mr D’Amico to return the Commission’s call. An SMS was also sent to Mr D’Amico requesting he contact the Commission.

[4] Later that day the Commission emailed correspondence to Mr D’Amico’s nominated email address advising that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application. The correspondence also warned that if he did not pay the application fee or make an application to have the fee waived within 14 days his application may be dismissed. Mr D’Amico did not respond.

[5] On 27 March 2020, the Commission again telephoned Mr D’Amico on his nominated telephone number to discuss his application. Mr D’Amico did not answer the call and a voicemail message was left requesting he contact the Commission urgently.

[6] On 1 April 2020, the Commission made a final attempt to telephone Mr D’Amico on his nominated telephone number. The call went unanswered. A voicemail message was left advising Mr D’Amico that his application would be dismissed if he did not urgently make payment of the filing fee or forward a completed fee waiver form.

[7] To date payment of the required fee has not been made and no fee waiver form has been received.

[8] Section 395 of the FW Act, which deals with application fees, provides that:

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.

[9] Section 587(1) of the FW Act provides as follows:

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.

[10] 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 1 to this effect will be issued shortly.

COMMISSIONER

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