James Edwards v ISS Integrated Services

[2016] FWC 7836

[2016] FWC 7836

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Edwards
v
ISS Integrated Services
(U2016/11936)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 27 OCTOBER 2016

Application for relief from unfair dismissal.

[1] On 28 September 2016, Mr James Edwards made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Edwards provided an application for the filing fee to be waived, however the waiver application was incomplete.

[3] On 29 September 2016, Mr Edwards was advised by email correspondence that his application required payment of the filing fee or that alternatively he could apply to have the fee waived if he wished to proceed with his application.

[4] Section 395, which deals with application fees, provides:

“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.”

[5] On 30 September 2016, the Fair Work Commission (the Commission) attempted to contact Mr Edwards in relation to the correspondence dated 29 September. A voicemail message was left for Mr Edwards on the mobile number he provided requesting that he contact the Commission to avoid his application potentially being closed.

[6] On 3 October 2016, Mr Edwards was sent a letter reiterating that his application required a completed waiver application form or payment of the filing fee if he wished to proceed with his application.

[7] On 17, 18 and 20 September 2016, the Commission unsuccessfully attempted to contact Mr Edwards by telephone. Further voicemail messages were left for Mr Edwards. On 20 September 2016 the Commission made contact with Mr Edwards’ representative, Ms Winitana. The situation was explained to Ms Winitana and she advised she would speak with Mr Edwards that evening.

[8] On 25 October 2016, the Commission made a further unsuccessful attempt to telephone both Mr Edwards and his representative, Ms Winitana. A voice message was left for Mr Edwards advising that unless he contacted the Commission urgently, his application may be dismissed.

[9] No response was received from Mr Edwards and payment of the required fee has not been made.

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

[11] 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 Order (PR587016) to this effect will be issued.

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<Price code A, PR587015>