DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Filgate
(U2016/9475)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 28 OCTOBER 2016

Application for relief from unfair dismissal.

[1] On 14 July 2016, Mr Anthony Filgate made an application by telephone for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). A Respondent was not named.

[2] After the application was made, the Fair Work Commission (the Commission) sent correspondence on 15 July 2016 to Mr Filgate. This correspondence included a waiver application.

[3] Mr Filgate was provided 14 days from the date of making the application to complete a Form F2 - Application for Remedy from Unfair Dismissal (the application) in addition to paying the filing fee or completing a waiver form. Mr Filgate was advised that failure to return a completed application and payment/waiver form may result in his application being dismissed.

[4] On 28 July 2016, the Commission attempted to contact Mr Filgate by telephone as no completed application had been filed, however the call was unanswered and a voicemail was left. On the same day, correspondence was sent to Mr Filgate which noted a telephone application will not be further processed until the signed, completed application and application for fee waiver are returned to the Commission. Mr Filgate was advised in the absence of any advice from him by 11 August 2016, his application may be dismissed.

[5] On 24 August 2016 and 2 September 2016, the Commission attempted to contact Mr Filgate by telephone as no completed application had been filed, however the calls were unanswered and voicemails were left.

[6] On 2 September 2016, the Commission sent a letter to Mr Filgate noting his application remained incomplete and unpaid. It was noted that unless advice was received by the Commission within 14 days, his application would be dismissed.

[7] Final attempts to contact Mr Filgate were made on 12 and 13 October 2016 where a voicemail was left and an email was sent asking that he contact the Commission.

[8] To date, no response from Mr Filgate 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 Filgate 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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