Fair Work Act 2009

s.394 - Unfair dismissal

[1] On 11 July 2021 Ms Carly Bortolozzo 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). Ms Bortolozzo alleged she was unfairly dismissed by Jim Kanakis (Director of Abilities NQ) on 23 June 2021.

[2] The application was incomplete in that Ms Bortolozzo did not pay the required fee or file a completed waiver form.

[3] On 13 July 2021 the Commission attempted to contact Ms Bortolozzo on her nominated telephone number to discuss payment of the required fee however, Ms Bortolozzo did not answer the call. A voicemail message was left requesting that she or her representative call the Commission to arrange payment.

[4] Later that day, the Commission emailed correspondence to Ms Bortolozzo's nominated email address advising that their application required payment of the filing fee or a completed waiver form if she wished to proceed with the application. That correspondence also warned that if payment was not made or a waiver form was not received within 14 days, the application may be dismissed. An SMS notification was also sent to Ms Bortolozzo's nominated telephone number, advising that there was a problem with her application and requesting she contact the Commission.

[5] On 16 August 2021 the Commission contacted Ms Bortolozzo's representative Mr Ken Flint via telephone. Mr Flint advised that he was not sure if Ms Bortolozzo wished to pursue her application. The Commission informed Mr Flint it would contact Ms Bortolozzo directly.

[6] A final attempt to contact Ms Bortolozzo was made by the Commission on 16 August 2021 to obtain payment or a completed waiver form. The call was not answered, and a voicemail message was left advising Ms Bortolozzo that payment of the required fee was still outstanding.

[7] To date there has been no response from Ms Bortolozzo, the required fee has not been paid and a completed waiver form has not been received.

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

(1) An application to the FWC under this Division must be accompanied by any fee prescribed by the regulations.

(a) a fee for making an application to the FWC under this Division; and

(c) the circumstances in which all or part of the fee may be waived or refunded.

(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

(c) the application has no reasonable prospect 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 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.

[1] PR732996.

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