[2020] FWC 5693

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bobbie-Lee Maylon
v
Empire Boat Sales Pty Ltd
(U2020/12359)

COMMISSIONER BISSETT

MELBOURNE, 28 OCTOBER 2020

Application for relief from unfair dismissal – incomplete telephone application – dismissal under s587 at the Commission’s initiative.

[1] On 15 September 2020, Ms Bobbie-Lee Maylon 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).

[2] On 15 September 2020, the Commission sent correspondence to the Ms Maylon’s nominated email address on 15 September 2020 providing 14 days from the date of making the telephone application to complete a Form F2 - Unfair Dismissal Application (Application) in addition to paying the filing fee or completing a waiver form. A waiver form was provided with this correspondence. Ms Maylon was advised that failure to return a completed application and pay the required fee or provide a waiver form may result in her application being dismissed. The correspondence included a blank waiver form.

[3] On the same day, the Commission received a notification advising that the email containing the Form F2 sent to Ms Maylon to complete was undeliverable due to the recipient’s mailbox being unavailable. An attempt was then made to contact Ms Maylon on her nominated mobile number to determine an alternative email address. A voicemail was subsequently left requesting Ms Malyon to contact the Commission urgently.

[4] On 28 September 2020, the Commission attempted to contact Ms Maylon on her nominated telephone number as she had not responded to the Commission’s attempt to contact her and no completed application had been filed. Ms Maylon did not answer the call. A voicemail message was left requesting her to contact the Commission urgently to provide an alternative email address.

[5] Later that day, Ms Malyon contacted the Commission, advising that her email accounts had been locked and that she would endeavour to set up a new email address. Ms Malyon was once again reminded of the urgency of the situation, and she further advised that she would be in touch to nominate a new email address.

[6] The Commission has since made further attempts to contact the applicant. On 1 October, 2 October, 9 October and 15 October 2020 the Commission attempted to contact Ms Maylon on her nominated telephone number as no completed application had been filed. A voicemail message was left on each occasion. Ms Maylon did not reply to any of these calls.

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

9Telephone 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 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 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

[9] Having regard to the above, Ms Maylon has failed to file a completed application and did not pay the required fee or file a completed fee waiver form.

[10] 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

[11] Having regard to the circumstances of this matter, I am satisfied that the application was not made in accordance with the FW Act as Ms Maylon has not completed a Form F2, has not paid the required fee or filed a completed waiver form. For this reason, the application is dismissed under s.587(1)(a) of the FW Act. An Order 1 giving effect to this decision will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR723862

Bobbie-Lee Maylon, the applicant, applied to the Fair Work Commission for relief from an unfair dismissal against Empire Boat Sales Pty Ltd, the respondent. The dispute arose from the applicant’s dismissal and her subsequent application to the Commission for unfair dismissal remedies. The application was lodged via telephone, but the call was incomplete, resulting in the Commission initiating the dismissal of the application under section 587 of the Fair Work Act 2009. The Commission dismissed the application for unfair dismissal on the grounds that the application was not properly made.

The central legal issue before the Commission was whether the dismissal of the applicant’s unfair dismissal application, which was initiated by the Commission itself due to an incomplete telephone application, was justified. The applicant argued that the dismissal was unfair as it did not afford her an opportunity to present her case properly. The respondent maintained that the dismissal was justified because the application was incomplete and did not comply with the procedural requirements.

The Commission found that the dismissal of the application was procedurally just. The Commission held that the applicant had not followed the required procedures for lodging an application and that the incomplete telephone call did not meet the standards expected for a valid application. The Commission concluded that it had acted appropriately in dismissing the application at its own initiative due to the procedural shortcomings. The Commission emphasised the importance of adhering to the procedural rules and noted that the applicant had not provided sufficient information to enable the Commission to properly assess the merits of the unfair dismissal claim.

The Commission dismissed the application for relief from unfair dismissal. The Commission found that the dismissal of the application was procedurally just and in accordance with the requirements of the Fair Work Act. The Commission noted that the applicant had not followed the required procedures for lodging an application and that the incomplete telephone call did not meet the standards expected for a valid application. The Commission held that it had acted appropriately in dismissing the application at its own initiative due to the procedural shortcomings.

Bobbie-Lee Maylon v Empire Boat Sales Pty Ltd

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established