Chapman-McHugh v Bunnings Warehouse

[2016] FWC 1709

[2016] FWC 1709

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Tonia Chapman-McHugh
v
Bunnings Warehouse
(U2016/4642)
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 18 MARCH 2016
Application for relief from unfair dismissal.

[1]        On 17 February 2016, Ms Tonia Chapman-McHugh 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 18

February 2016 to Ms Chapman-McHugh.

[3]        Ms Chapman-McHugh was allowed 14 days from the date of making the application

to complete a Form 2 - Application for Remedy from Unfair Dismissal in addition to paying

the filing fee or completing a waiver form. Ms Chapman-McHugh was advised that failure to

return a completed application and payment/waiver form would result in her application being

dismissed.

[4]        On 23 February 2016, the Commission attempted to contact Ms Chapman-McHugh by

telephone as no completed application had been filed, the call was not answered and a voice

message was left.

[5]        On 1 and 3 March 2016, the Commission attempted to contact Ms Chapman-McHugh

without success.

[6]        On 8 March 2016, a further attempt was made to contact Ms Chapman-McHugh by

telephone and by email. The email provided an additional seven days for Ms Chapman-

McHugh to provide the required completed application along with the required filing fee or

lodge a completed waiver by 15 March 2016.

[7]        To date, no response has been received from Ms Chapman-McHugh nor has the

required filing fee or completed waiver application been received.
[2016] FWC 1709

[8]         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).

[2016] FWC 1709

(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.

[9]        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.

[10]      Having regard to the above, Ms Chapman-McHugh has failed to file a completed

application and did not pay the required fee.

[11]      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.

[12]      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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