DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Adam Gane
v
SEQ Hotels Pty Ltd
(U2014/16495)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 11 MARCH 2015

Application for relief from unfair dismissal.

[1] On 18 December 2014, Mr Adam Gane made an application by telephone for a remedy for unfair dismissal under to s.394 of the Fair Work Act 2009 (the Act).

[2] On 19 December 2014, correspondence was sent to Mr Gane advising that the application was incomplete and that the required lodgement fee was not paid. He was advised that the Commission rules required a completed application to be filed within 14 days of the telephone application.

[3] On 8 January 2015, an attempt to telephone Mr Gane was made and no voice message was able to be left.

[4] On 8 January 2015, further correspondence was sent to Mr Gane advising that the application was incomplete and that the required lodgement fee was not paid. The correspondence required Mr Gane to advise the Commission within 14 days whether he wished to proceed with his application.

[5] On 27 January 2015, further correspondence was sent to Mr Gane requesting he advise the Commission whether he wished to proceed with his application.

[6] On 10 February 2015, Mr Gane phoned the Commission in regards to his incomplete application to advise he had posted his completed application in December 2014. Mr Gane was advised that this had not been received and asked if he could scan and resend the completed application by email. Mr Gane advised at this time that he would do this.

[7] On 16 February 2015, an attempt to contact Mr Gane was made and no voice message was able to be left.

[8] To date, no completed application or lodgement fee has been received.

[9] Rule 9 of the Fair Work Commission Rules 2013 (the Rules) governs applications made by telephone in the Commission:

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

(3) The 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.

[10] 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 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.

[11] Having regard to the above, Mr Gane has failed to file a completed application and did not pay the required fee.
[12] Section 587(1) of the 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 prospects of success.

[13] Having regard to the circumstances of this matter, I am satisfied that the application was not accompanied by the fee as prescribed by the Act and is therefore, not made in accordance with the Act. For this reason, the application is dismissed under s.587(1)(a) of the Act. An Order giving effect to this decision will be issued accordingly.
DEPUTY PRESIDENT
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Adam Gane v SEQ Hotels Pty Ltd

[2015] FWC 1410

11 MARCH 2015

DECISION