Ashley Herbert v Di Prinzio Concreting Pty Limited

[2025] FWC 564 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION and ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Ashley Herbert
v

Di Prinzio Concreting Pty Limited

(U2024/14914)

DEPUTY PRESIDENT EASTON

SYDNEY, 24 FEBRUARY 2025

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

On 12 December 2024, Mr Ashley Herbert made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

The application filed by Mr Herbert was not made in accordance with the Act (per s.587(1)(a)) because the prescribed fee (per s.395) has not been paid or waived. Section 587 confers a discretion on the Commission to dismiss Mr Herbert’s application.

Commission staff attempted to contact Mr Herbert on on December 16, 30, 31, 6 and 8 by telephone, SMS and/or email.

Mr Herbert has had ample opportunity to rectify the deficiency in his application and has had ample opportunity to show why his application should not be dismissed under s.587 (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 Mr Herbert’s unfair dismissal application and make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Ashley Herbert on 12 December 2024 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application for unfair dismissal brought by Ashley Herbert against Di Prinzio Concreting Pty Limited. Mr Herbert applied under section 394 of the Fair Work Act 2009, seeking remedy for what he alleged to be an unfair dismissal. The application was made on 12 December 2024 but was subsequently dismissed by the Commission.

The primary legal issue before the Commission was whether Mr Herbert’s application complied with the requirements of the Fair Work Act 2009. Specifically, the Commission needed to determine if the application was made in accordance with the Act, which includes the payment of the prescribed fee or a waiver of that fee. The Act mandates that the fee must be paid or waived to validate the application process. The Commission's decision hinged on whether Mr Herbert’s failure to pay the fee warranted the dismissal of his application under section 587 of the Act.

Deputy President Easton ruled that Mr Herbert’s application did not comply with the Act because the prescribed fee had not been paid or waived. Despite attempts by Commission staff to contact Mr Herbert and provide him with opportunities to rectify the deficiency, he failed to address this issue. The Deputy President found that Mr Herbert had ample opportunity to show why his application should not be dismissed, but he did not take advantage of these opportunities. As a result, the Deputy President exercised the discretion conferred by section 587 and dismissed Mr Herbert’s application for unfair dismissal.

The final order of the Commission was that the unfair dismissal application made by Mr Ashley Herbert on 12 December 2024 was dismissed. The dismissal was based on the failure to comply with the procedural requirement of paying the prescribed fee or obtaining a waiver thereof, as stipulated by the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established