DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Barry Hughes
v
Concept Sheetmetal B&G T/A Concept Sheetmetal
(U2016/6711)

COMMISSIONER WILSON

MELBOURNE, 7 SEPTEMBER 2016

Application for relief from unfair dismissal.

[1] On 5 May 2016, Mr Barry Hughes made an application by telephone for a remedy for unfair dismissal under to s.394 of the Fair Work Act 2009 (the Act).

[2] After the application was made, the Fair Work Commission sent correspondence on 6 May 2016 to Mr Hughes. On the same date, the Commission attempted to telephone Mr Hughes but a voice message could not be left.

[3] Mr Hughes was allowed 14 days from the date of making the application to complete a Form 2 - Application for Remedy from Unfair Dismissal (the application) in addition to paying the filing fee or completing a waiver form. Mr Hughes was advised that failure to return a completed application and payment/waiver form would result in his application being dismissed.

[4] On 17 May, 27 May, 7 June and 13 July 2016, the Commission attempted to contact Mr Hughes by telephone as no completed application had been filed. No message could be left as a message recording advised that ‘the call could not be completed, try again later’.

[5] On 13 July 2016, correspondence was posted to Mr Hayes advising that failure to return a completed application and payment/waiver form would result in his application being dismissed.

[6] To date, no response has been received by Mr Hughes.

[7] 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.

[8] 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

[9] Having regard to the above, Mr Hughes has failed to file a completed application and did not pay the required fee.

[10] 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

[11] 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.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Barry Hughes v Concept Sheetmetal B&G T/A Concept Sheetmetal

[2016] FWC 6317

7 SEPTEMBER 2016

DECISION