Brendan Hiscox v Silvan Food Company Pty Ltd

[2020] FWC 1025

[2020] FWC 1025

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brendan Hiscox
v
Silvan Food Company Pty Ltd
(U2020/1184)

COMMISSIONER BISSETT MELBOURNE, 25 FEBRUARY 2020

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

[1] On 3 February 2020 Mr Brendan Hiscox 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 Hiscox did not pay the required fee or file a completed waiver form.

[3] On 5 February, the Commission attempted to contact Mr Hiscox on his nominated mobile telephone number to discuss payment however Mr Hiscox did not answer the call. A voicemail was left advising that payment of the application fee was still outstanding.

[4] Later that day, the Commission sent correspondence to Mr Hiscox’s nominated email address advising him that his application required payment of the filing fee or a completed fee waiver form if he wished to proceed with his application. The correspondence also warned that if Mr Hiscox did not pay the application fee or make an application to have the fee waived within 14 days his application may be dismissed. Mr Hiscox did not respond to the correspondence.

[5] A final attempt to contact Mr Hiscox was made by the Commission on 14 February 2020 to obtain payment details. The call went unanswered and a voicemail message was left advising Mr Hiscox that payment of the application fee was still outstanding.

[6] To date there has been no response from Mr Hiscox and payment of the required fee has not been made.

[7] Section 395, which deals with application fees, states 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.

[8] Section 587(1) of the 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 prospects of success.

[9] 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 Order¹ to this effect will be issued shortly.

COMMISSIONER

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