Christie Burchell v Amak Pty Ltd T/A Wheel and Burrow

[2013] FWC 7938

[2013] FWC 7938

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christie Burchell
v
Amak Pty Ltd T/A Wheel and Burrow
(U2013/10304)

COMMISSIONER WILSON MELBOURNE, 16 OCTOBER 2013

Application for relief from unfair dismissal.

[1] On 6 June 2013, Ms Christie Burchell made an application by telephone for a remedy for unfair dismissal under to s.394 of the Fair Work Act 2009 (the Act).

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

[3] On 24 July 2013, the Fair Work Commission (the Commission) corresponded with Ms Burchell by telephone and by post to advise that her completed application and payment were still outstanding. Further correspondence of this nature was sent to Ms Burchell on 16 September 2013 in addition to a telephone message on 24 September 2013.

[4] Rule 14 of the Fair Work Rules 2010 (the Rules) governs applications made by telephone in the Commission.

“14 Applications may be made by telephone

Despite rule 6, an application for an unfair dismissal remedy may be made by telephone at a telephone number approved for that purpose, provided that:

(a) the applicant pays the application fee prescribed in the Regulations by credit card, or applies for a waiver of the fee at the time the telephone application is made; and

(b) the applicant signsand returns to FWA a copy of the written application generated by FWA (amended as necessary to correct any errors) together with a completed application for waiver if a waiver of the fee has been sought.

. . .

Note 3 A telephone application will not be accepted unless the requirement in (a) is complied with. An application made under this rule will not be further processed by FWA until the requirement in (b) has been complied with.”

[5] 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.

[6] Having regard to the above, Ms Burchell has failed to file a completed application and did not pay the required fee.

[7] 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.

[8] 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

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