Nickolas Herford-Collins v Regional Express Holdings Limited

[2022] FWC 3157

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Nickolas Herford-Collins
v

Regional Express Holdings Limited

(U2022/10903)

COMMISSIONER BISSETT

MELBOURNE, 23 DECEMBER 2022

Application for an unfair dismissal remedy

On 14 November 2022 Mr Nickolas Herford-Collins 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).

The application was incomplete in that Mr Herford-Collins did not pay the required fee or file a completed waiver form.

On 16 November 2022 the Commission sent correspondence to Mr Herford-Collins’ nominated email address advising that his application required payment of the filing fee or a completed waiver form if he wished to proceed with the application. The correspondence also warned that if payment is not made or a waiver form is not received within 7 calendar days, his application may be dismissed.

On 17 November 2022 an SMS notification was sent to Mr Herford-Collins’ nominated telephone number, advising him to action the correspondence sent to him by the Commission on 16 November 2022 by paying the application fee.

On 18 November 2022 the Commission sent correspondence to Mr Herford-Collins’ nominated email address reminding him that his application required payment of the filing fee or a completed waiver form if he wished to proceed with the application. The correspondence also warned that if payment is not made or a waiver form is not received, his application may be dismissed.

A final attempt to contact Mr Herford-Collins on his nominated telephone number was made by the Commission on 22 November 2022 to obtain payment or a completed waiver form. However, Mr Herford-Collins could not be reached and a voicemail message was left advising him that payment of the required fee was still outstanding.

To date there has been no response from Mr Herford-Collins, the required fee has not been paid and a completed waiver form has not been received.
Section 395 of the FW Act, which deals with application fees, provides 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.

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

(c) the application has no reasonable prospect of success.

In the circumstances where Mr Herford-Collins has failed to pay the filing fee or provide a waiver form I have determined that his application was not made in accordance with the FW Act and has no reasonable prospect of success.

As such, I order that the application be dismissed under s.587(1)(a) of the FW Act.

COMMISSIONER

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CaseChat Overview and Summary

Nickolas Herford-Collins filed an application with the Fair Work Commission seeking a remedy for unfair dismissal against his former employer, Regional Express Holdings Limited. The application was incomplete as Herford-Collins did not pay the required fee or file a completed waiver form. Despite multiple warnings from the Commission, Herford-Collins did not respond, and the required fee or waiver form was not submitted. The Commission was required to determine whether to dismiss the application under section 587 of the Fair Work Act 2009, which allows for the dismissal of applications that are not made in accordance with the Act or that have no reasonable prospect of success. The Commission found that Herford-Collins’ failure to comply with the procedural requirements meant that the application was not made in accordance with the Act and had no reasonable prospect of success. Consequently, the Commission dismissed the application under section 587(1)(a) of the Act.

The central issue before the Commission was whether the application met the necessary requirements to proceed, given that Herford-Collins had not paid the application fee or provided a waiver form. Section 395 of the Fair Work Act mandates that an application must be accompanied by the prescribed fee or a waiver. Herford-Collins’ failure to comply with these requirements was a clear breach of the procedural rules. Additionally, section 587(1) of the Act empowers the Commission to dismiss applications that do not comply with the Act or that lack a reasonable prospect of success. The Commission held that Herford-Collins' non-compliance with the fee payment or waiver submission rendered his application defective and without merit. Therefore, the application was appropriately dismissed.

In reaching its decision, the Commission considered the statutory provisions and the procedural requirements outlined in the Fair Work Act. It was noted that multiple opportunities were provided to Herford-Collins to rectify the deficiencies in his application, but he failed to respond. The Commission concluded that the application did not meet the necessary criteria to proceed, and thus, it was dismissed. This outcome was consistent with the provisions of the Act, which emphasize the importance of procedural compliance in the application process. The dismissal was a direct consequence of Herford-Collins’ failure to adhere to the prescribed application requirements.

The Fair Work Commission ordered the dismissal of Nickolas Herford-Collins' application for an unfair dismissal remedy. The dismissal was made under section 587(1)(a) of the Fair Work Act, due to Herford-Collins' failure to pay the required application fee or file a completed waiver form. The Commission's decision was based on the clear procedural shortcomings in the application and the lack of any reasonable prospect of success. This order effectively concluded the matter, with no further action to be taken regarding the original unfair dismissal claim.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established