Tyson Vincenzi v Planit Kitchens

[2025] FWC 1140

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s 394—Unfair dismissal

Tyson Vincenzi
v

Planit Kitchens

(U2025/2216)

DEPUTY PRESIDENT BEAUMONT

PERTH, 24 APRIL 2025

Application for an unfair dismissal remedy – application fee not paid or waived – application not made in accordance with the Act - application dismissed

On 26 February 2025, Mr Tyson Vincenzi (the Applicant) made an unfair dismissal application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act).

The Applicant’s application was not made in accordance with the Act (per s 587(1)(a)) because the prescribed fee (per s 373) has not been paid or waived. Section 587(1)(a) allows the Commission to dismiss an application without conducting a hearing, so long as the applicant has been afforded procedural fairness.

The Applicant applied for a waiver of the application fee using a Form F80 on 26 February 2025, however the form was incomplete.

Commission staff contacted the Applicant concerning this deficiency on the following dates:

·   4 March 2025 by email and SMS;
·   18 March 2025 by telephone;
·   4 April 2025 by email and SMS; and
·   14 April 2025 by email and SMS.

The Applicant has been on notice since 4 March 2025 of the likely consequences for his application if he did not pay the application fee or address the deficiencies in his application for a waiver. In emails from Deputy President Easton’s Chambers dated 4 April 2025 and 14 April 2025, the Applicant was directed to pay the application fee, apply for a waiver, or make any submissions he wished to make as to why his application should not be dismissed by 7 April 2025 and 16 April 2025 respectively.

To date, there has been no response from the Applicant to the Commission’s directions and attempts to contact him.
The Applicant has had ample opportunity to rectify the deficiency in the application and to show why his application should not be dismissed under s 587 of the Act (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [15]-[16] and the cases cited therein).

I have decided to dismiss the Applicant’s unfair dismissal application using the power available under s 587(1)(a) Act and make the following order:

A.The application under s 394 of the Fair Work Act 2009 (Cth) made by Mr Tyson Vincenzi on 26 February 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Tyson Vincenzi filed an unfair dismissal application under section 394 of the Fair Work Act 2009, alleging wrongful termination by Planit Kitchens. The application was submitted on 26 February 2025, but it was incomplete because the required application fee had not been paid or waived. Despite multiple communications from the Fair Work Commission, Vincenzi did not address the incomplete fee waiver application, nor did he respond to the Commission’s directives to rectify the deficiency. This omission led to the application being dismissed without a hearing, in accordance with section 587(1)(a) of the Act.

The primary legal issue before the Deputy President was whether the application could be dismissed due to the failure to pay the prescribed fee or to properly apply for a waiver. Section 587(1)(a) of the Act permits the dismissal of an application if it is not made in accordance with the Act, which includes not paying the application fee. The Applicant had been informed of the potential consequences of not addressing the fee issue and had been given multiple opportunities to rectify the deficiency, but failed to do so.

In reaching the decision to dismiss the application, Deputy President Beaumont noted that Vincenzi had ample opportunity to address the fee issue and provide any necessary submissions to justify why the application should not be dismissed. The Deputy President referred to Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302, which underscores the importance of following procedural requirements. Vincenzi's inaction in the face of clear directives led to the conclusion that the application was not made in accordance with the Act. As such, the application was dismissed.

The final order of the Commission dismissed the unfair dismissal application made by Mr Tyson Vincenzi on 26 February 2025. The dismissal was made in accordance with section 587(1)(a) of the Fair Work Act 2009, due to the failure to pay the application fee or properly apply for a waiver, despite multiple opportunities to rectify the issue.

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