1
Fair Work Act 2009
s.394—Unfair dismissal
Tony-James Smith
v
Retail Staff Pty Ltd
(U2023/1083)
COMMISSIONER BISSETT MELBOURNE, 28 FEBRUARY 2023
Application for an unfair dismissal remedy
[1] On 11 February 2023 Mr Tony-James Smith 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).
[2] The application was incomplete in that Mr Smith did not pay the required fee or file a
completed waiver form.
[3] On 14 February 2023 the Commission emailed correspondence to Mr Smith’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 7 calendar days the
application may be dismissed.
[4] On 17 February 2023 the Commission emailed further correspondence to Mr Smith’s
nominated email address reminding 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, the application may be
dismissed.
[5] A final attempt to contact Mr Smith on his nominated telephone number was made by
the Commission on 20 February 2023 to obtain payment or a completed waiver form. The call
was not answered. A voicemail message was left advising Mr Smith that payment of the
required fee was still outstanding.
[6] On 21 February 2023, the Commission emailed correspondence to the applicant’s
representative, Employee Dismissals advising that the filing fee remained unpaid and that the
application may be dismissed if payment is not made or a waiver form is not received.
[7] To date there has been no response from Mr Smith or Employee Dismissals, the required
fee has not been paid and a completed waiver form has not been received.
[2023] FWC 485
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 485
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[8] 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.
[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 prospect of success.
[10] 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.
COMMISSIONER
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