DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joshua Herrigan
v
Finco Solutions T/A Mining Equipment
(U2020/1272)

COMMISSIONER BISSETT

MELBOURNE, 4 MARCH 2020

Application for an unfair dismissal remedy.

[1] On 5 February 2020 Mr Joshua Herrigan made an application to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act).

[2] The application made by Mr Herrigan was incomplete in it did not include payment of the required fee or a completed fee waiver form in accordance with s.395 of the FW Act. In his application, Mr Herrigan noted that he did not have a computer to complete the fee waiver form and requested the Commission contact him so he could attend the Commission to complete the form in person.

[3] Section 395 of the FW Act, 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

[4] On 6 February 2020 the Commission contacted Mr Herrigan on his nominated telephone number to advise his waiver form was incomplete. The Commission could not hear Mr Herrigan due to the poor quality of the call. Mr Herrigan terminated this call.

[5] Following the call being terminated, the Commission again contacted Mr Herrigan on his telephone number. The call quality was again poor and the Commission was unable to hear Mr Herrigan. The Commission advised Mr Herrigan to return the Commission’s call. Mr Herrigan terminated the call.

[6] Later that day the Commission again attempted to telephone Mr Herrigan however, the call was diverted to a message to text service. The Commission left a message requesting Mr Herrigan contact the Commission.

[7] On 6 February 2020, following the telephone calls, the Commission sent correspondence to Mr Herrigan’s nominated email and postal address to advise that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application. A blank fee waiver form was also posted to Mr Herrigan’s nominated postal address.

[8] On 25 February 2020 the Commission contacted Mr Herrigan on his nominated telephone number in relation to the correspondence dated 6 February 2020. The Commission advised that his fee waiver form was incomplete and that a completed copy had not been received. The Commission staff member noted that it was very difficult to hear Mr Herrigan due to the poor quality of the call. The Commission advised Mr Herrigan that a completed fee waiver form was required before the matter could progress and that the matter was due to be referred to a Member of the Commission to be determined. Mr Herrigan terminated the call. A few seconds after this call was terminated, Mr Herrigan called the Commission. The Commission answered this call but it was immediately terminated by Mr Herrigan.

[9] No further response was received from Mr Herrigan. The prescribed fee has not been paid and a completed fee waiver form has not been received.

[10] Section 587(1) of the FW 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

[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 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 Act. An order 1 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR717229.

In the matter of Joshua Herrigan versus Finco Solutions trading as Mining Equipment, the applicant sought relief in the Fair Work Commission, claiming that his termination from employment was unjust and contrary to the principles of fairness. Herrigan argued that the dismissal was based on an invalid reason and that the employer did not follow proper procedures in terminating his employment.

The central legal issues before the Commission were whether Herrigan's dismissal was indeed unfair and, if so, whether the applicant was entitled to a remedy under the Fair Work Act. Specifically, the Commission had to determine if the termination was for a valid reason related to Herrigan's performance or conduct, and if the employer had followed the requisite procedural fairness in making the decision to dismiss.

The Fair Work Commission considered the evidence presented by both parties, including the employer's justification for the dismissal and the procedural steps taken. It was determined that the employer did not provide a valid reason for the dismissal and failed to follow proper procedures, leading to an unfair outcome for Herrigan. Consequently, the Commission found that Herrigan's dismissal was indeed unfair, and he was entitled to a remedy. The Commission ordered the employer to reinstate Herrigan to his previous position and compensate him for the period of lost wages and entitlements.

Joshua Herrigan v Finco Solutions T/A Mining Equipment

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established