Joshua Wescombe v NRW Mining Pty Ltd

[2014] FWC 7060

[2014] FWC 7060

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Joshua Wescombe
v
NRW Mining Pty Ltd
(C2014/5695)

DEPUTY PRESIDENT KOVACIC CANBERRA, 10 OCTOBER 2014

Application to deal with contraventions involving dismissal.

[1] On 1 August 2014 Mr Joshua Westcombe made an application for the Fair Work Commission (Commission) to deal with a contravention of the general protections provisions of the Fair Work Act 2009 (Act) involving a dismissal.

[2] Mr Westcombe’ application was not accompanied by the required filing fee.

[3] Section 395 of the 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 prescribed:

(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.”

[4] On 8 August 2014 Mr Westcombe was advised by email correspondence that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application. In the absence of any response, on 18 August, the Commission attempted to contact Mr Westcombe by telephone. A voice message was left on his voice mail, requesting he contact the Commission regarding his application. Mr Westcombe did not return the call. The Commission again telephoned Mr Westcombe on 28 August to request payment of the filing fee. Another voice message was left. When this second phone call was not returned, a letter was sent to Mr Westcombe on 16 September advising that if payment of the filing fee or application for waiver was not received by close of business on 23 September 2014 his application would be dismissed. No response has been received from Mr Westcombe, and payment of the required fee has not been made.

[5] Section 587 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.”

[6] 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 to this effect will be issued separately.

DEPUTY PRESIDENT

Printed by the authority of the Commonwealth Printer

<Price code A, PR556328>