DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brett Ellis
v
Esso Australia Pty Ltd
(U2014/14330)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 6 JANUARY 2015

Application for relief from unfair dismissal.

[1] Mr Brett Ellis was dismissed by Esso Australia Pty Ltd (Esso) on 25 September 2014. On 15 October 2014 Mr Ellis’s representative made a telephone application for an unfair dismissal remedy.

[2] On 21 October 2014, Mr Ellis’s representative filed a completed application.

[3] Esso objected to Mr Ellis’ application on the basis that it was not made within 21 days of the date of his dismissal.

[4] The parties filed submissions and because there were no factual disputes between the parties I determined that it was not necessary to conduct a hearing.

[5] Esso submitted that no application was made on 15 October 2014 because, to be a valid application, at the time of making the telephone application, the applicant is required to specify the remedy sought and the reasons why the dismissal was unfair. It was submitted that this ensures that the employer is put on notice of the case against it, including the possibility of reinstatement and it enables it to manage its workforce accordingly.

[6] Esso further submitted that the ability to make an incomplete telephone application enables an employee to circumvent the 21 day time limit and effectively obtain an extension of time to lodge an application without the Commission deciding if there are exceptional circumstances.

[7] The Fair Work Act 2009 requires an unfair dismissal application to be lodged within 21 days of the dismissal taking effect.

[8] S.585 provides that an application to the Fair Work Commission must be made in accordance with the procedural rules.

[9] The Fair Work Commission Rules 2013 provides at rule 9 that an unfair dismissal application may be made by telephone.

“9 Telephone applications

(1) This rule applies to a person wanting to:

(a) make an application under section 365 of the Act to the Commission;

(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:

(i) for an application under section 365 of the Act—the fee mentioned in regulation 3.02 of the Regulations; or

(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] It is clear from this rule that there is no particular form required to be completed when an applicant makes a telephone application. All that is required is that the applicant advises the Commission that they wish to make an application for an unfair dismissal remedy. It is not necessary in this decision to determine the minimum requirements for an application to be a valid telephone application.

[11] Once a telephone application is made the information provided by the applicant is included in a form which is then provided to the applicant to complete and sign.

[12] It is not disputed that Mr Ellis’s representative completed the application form and signed it and returned it to the Commission within the time period required by the Rules.

[13] I do not accept the submissions of Esso that Mr Ellis was required to, in his telephone application, set out what remedy he was seeking or the grounds on which his application relies.

[14] It is clear from the rules that “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 and that application is taken to have been made on the day the person telephones the Commission” (my emphasis). In these cases the application is both telephoning the Commission and the lodging of the completed written application. As such Mr Ellis has provided details of the remedy sought and the reasons why he alleges the dismissal was unfair in the time period provided by the Act.

[15] That the rule provides that the application form must be subsequently completed supports a conclusion that the applicant is not required at the time of making the telephone application to provide an answer to all the questions in the prescribed form.

[16] I do not accept the submissions that it is unfair for the employer not to be put on notice about the case it is required to meet or the remedy sought at the time the telephone application is made. The applicant is required to file a completed application form within 14 calendar days after the telephone call and at that time the employer is provided with the information.

[17] In any event applications for an unfair dismissal remedy are not pleadings. For example, an applicant who in his or her application seeks as an outcome that the Commission find that his or her dismissal was unfair is not subsequently precluded from seeking reinstatement and/or compensation. Neither is an applicant who seeks a remedy that the Commission thinks is “fair and just,” as often occurs, subsequently prevented from seeking reinstatement and or compensation.

[18] I further do not accept that applicants are required in a telephone application to set out why they believe the dismissal was unfair. Again, an applicant is not limited in his or her evidence and submissions before the Commission at the hearing to the reasons set out in the application.

[19] I further do not accept that the Rule enables an applicant to circumvent the time limits prescribed by the Act. The applicant is required to commence the proceeding within the 21 day time limit. The rule does no more than permit this to be done in a quick, flexible and informal manner.

[20] For the reasons set out above I find that the application was made within time and no extension of time is necessary. The application will be referred to conciliation.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Brett Ellis v Esso Australia Pty Ltd

[2015] FWC 45

6 JANUARY 2015

DECISION