Aaron Dunkley v Woohah Productions
[2023] FWC 1689
•13 JULY 2023
| [2023] FWC 1689 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Aaron Dunkley
v
Woohah Productions
(U2023/4599)
| COMMISSIONER BISSETT | MELBOURNE, 13 JULY 2023 |
Application for an unfair dismissal remedy – incomplete telephone application – dismissal under s587 at the Commission’s initiative.
On 30 May 2023 Mr Aaron Dunkley made an application by telephone to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).
Later that day, the Commission sent correspondence to Mr Dunkley’s nominated email address advising that he had 14 days from the date of making the telephone application to complete the attached Form F2 - Unfair Dismissal Application (Form F2) in addition to paying the filing fee or completing a waiver form. Mr Dunkley was advised that a failure to return a completed application and provide payment or a completed waiver form may result in his application being dismissed. An SMS notification was also sent to Mr Dunkley’s nominated telephone number requesting that he contact the Commission.
On 19 June 2023, the Commission attempted to contact Mr Dunkley on his nominated telephone number as no completed Form F2 had been filed. The Commission advised Mr Dunkley that a completed application and payment or waiver were still outstanding. Mr Dunkley was advised that if he no longer wished to pursue his application, he could file a notice of discontinuance. Mr Dunkley advised that he had been unable to follow up on the matter due to personal circumstances but did not wish to withdraw the matter. Mr Dunkley was advised that if a completed application was not received by 21 June 2023, the matter would be at risk of being dismissed. To this, Mr Dunkley affirmed that he understood what was required of him.
To date there has been no response from Mr Dunkley. A completed application has not been filed nor the required fee paid or a completed waiver form provided.
Rule 9 of the Fair Work Commission Rules 2013 (Rules) governs applications made by telephone in the Commission. Rule 9 states as follows:
9 Telephone applications
(1) This rule applies to a person wanting to:
....(b) make an unfair dismissal application to the Commission.
(2) The person may, as an alternative to lodging the application in the approved form, make the application by telephone to a telephone number approved for that purpose by the General Manager.
Note: The telephone numbers approved by the General Manager for making a telephone application are available at Commission must prepare a written application for the person, based on the telephone application, and give the written application to the person.
(4) The person must, within 14 calendar days after the day on which the Commission gives the written application to the person, complete and sign the written application and lodge it with the Commission and:
(a) pay:
...
(ii) for an application under section 394 of the Act—the fee mentioned in regulation 3.07 of the Regulations; or
(b) apply for a waiver of the fee.
(5) If the person applies for a waiver, and the Commission refuses that application, the person must pay the application fee within 7 calendar days of being notified of the refusal by the Commission.
(6) If:
(a) either:
(i) the person pays the application fee; or
(ii) the Commission approves a fee waiver; and
(b) the person completes and signs the written application and lodges it with the Commission;
the application is taken to have been made on the day that the person telephones the Commission to make the application in accordance with subrule (2).
(7) The process of telephoning the Commission in accordance with subrule (2), and lodging the completed and signed written application, are taken to be the application.
Section 395 of the FW Act, which deals with application fees, states 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.
Having regard to the above, Mr Dunkley has failed to file a completed application.
Section 587(1) of the FW Act provides as follows:
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.
I am satisfied that the application was not made in accordance with the FW Act as Mr Dunkley has not completed a Form F2. For this reason the application is dismissed under s.587(1)(a) of the FW Act.
COMMISSIONER
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