Zakary Pettersson v Red Rooster

[2022] FWC 1792

[2022] FWC 1792

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Zakary Pettersson
v

Red Rooster

(U2022/6390)

COMMISSIONER BISSETT MELBOURNE, 11 JULY 2022

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

1. On 17 June 2022 Mr Zakary Pettersson 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 Pettersson did not pay the required fee or file a completed waiver form.

1. On 20 June 2022 the Commission attempted to contact Mr Pettersson on his nominated telephone number to discuss payment of the required fee. The Commission advised Mr Pettersson that the application fee was still outstanding. Mr Pettersson  was provided with information regarding applying for a fee waiver using a Form F80 Fee Waiver Application. Mr Pettersson was advised that either payment of the fee or a fee waiver would need to be provided to the Commission within 14 days and that an email would be sent with details for payment or waiver of the fee. Mr Petterson indicated that he would be filing an F80 Fee Waiver Application.

1. Later that day, the Commission emailed correspondence to Mr Pettersson’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 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. An SMS notification was also sent to Mr Pettersson’s nominated telephone number, regarding the unpaid application.

1. A final attempt to contact Mr Pettersson was made by the Commission on 4 July 2022 to obtain payment or a completed waiver form. The call was not answered and a voicemail message was left advising Mr Pettersson that payment of the required fee or a fee waiver application was still outstanding and that if neither were received the matter may be dismissed.

1. To date there has been no further response from Mr Pettersson, 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[1] to this effect will be issued with this decision.

COMMISSIONER

[1] PR743623.

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