Nickolas Herford-Collins v Regional Express Holdings Limited

[2022] FWC 3157

[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

1. 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).

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

1. 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.

1. 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.

1. 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. 

1. 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.

1. 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.

2. 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.

1. 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.

1. 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.

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

COMMISSIONER

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