Adam Mortel v S & W Slade & Sons (Warehouse) Pty Limited
[2022] FWC 1205
•17 MAY 2022
| [2022] FWC 1205 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Adam Mortel
v
S & W Slade & Sons (Warehouse) Pty Limited
(U2022/4776)
| COMMISSIONER O’NEILL | MELBOURNE, 17 MAY 2022 |
Application for relief from unfair dismissal – incomplete telephone application – dismissal under s587 at the Commission’s initiative.
On 28 April 2022, Mr Adam Mortel 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).
On 28 April 2022, the Commission sent correspondence to the Mr Mortel’s nominated email address, providing 14 days from the date of making the telephone application to complete a Form F2 - Unfair Dismissal Application (Application). Mr Mortel was advised that failure to return a completed application form may result in his application being dismissed.
On 10 May 2022, the Commission attempted to contact Mr Mortel on his nominated telephone number as no completed application had been filed. He did not answer the call. A voicemail message was left requesting confirmation the Unfair Dismissal Application had been completed and returned to the Commission. The Commission advised him that a completed application was still outstanding. The Commission advised that if the Commission does not receive completed application by 11 May 2022, the matter will be referred to a Member of the Commission and may be dismissed. Mr Mortel was advised of the case number and the Commission helpline number. Mr Mortel has not made any contact with the Commission and has not lodged a completed application.
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 Mortel 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.
Having regard to the circumstances of this matter, I am satisfied that the application was not made in accordance with the FW Act as Mr Mortel has not completed a Form F2. For this reason, the application is dismissed under s.587(1)(a) of the FW Act. An Order giving effect to this decision will be issued shortly.
COMMISSIONER
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