William Mcgarvey v Yne Container Services

[2014] FWC 244

[2014] FWC 244

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

William Mcgarvey
v
Yne Container Services
(U2013/17103)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 24 MARCH 2014

Application for relief from unfair dismissal.

[1] On 5 December 2013, an application under s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Mr William Mcgarvey.

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

[3] On 9 December 2013, Mr Mcgarvey 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 20 December 2013, the Fair Work Commission (the Commission) contacted Mr Mcgarvey in relation to the email correspondence dated 9 December 2013.

[6] Mr Mcgarvey advised he had not received the correspondence. Upon checking his email junk mail folder, whilst on the telephone with the Commission, Mr Mcgarvey located the email correspondence and advised he would complete the waiver form and email the form to the Commission.

[7] On 6 January 2014, the Commission attempted to contact Mr Mcgarvey. A voice message was left on Mr. Mcgarvey’s phone requesting he call the Commission as soon as possible.

[8] On 16 January 2014, Mr Mcgarvey was advised by email correspondence that no payment or waiver form had been received and if payment or completed waiver form was not received by 23 January 2014, his matter may be dismissed.

[9] Mr Mcgarvey has not contacted the Commission or provided the necessary details as requested.

[10] 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.

[11] 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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