Christopher Johnson v The Rosevears Hotel
[2023] FWC 499
•28 FEBRUARY 2023
| [2023] FWC 499 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Christopher Johnson
v
The Rosevears Hotel
(U2023/742)
| COMMISSIONER BISSETT | MELBOURNE, 28 FEBRUARY 2023 |
Application for an unfair dismissal remedy – incomplete telephone application – dismissal under s587 at the Commission’s initiative.
On 1 February 2023 Mr Christopher Johnson 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).
On 1 February 2023 the Commission sent correspondence to the Mr Johnson’s nominated postal address advising that he had 14 days from the date of making the telephone application to complete the attached Form F2 - Unfair Dismissal Application (Form F2). Mr Johnson was advised that a failure to return a completed application may result in his application being dismissed.
On 16 February 2023 the Commission attempted to contact Mr Johnson on his nominated telephone number as no completed Form F2 had been filed. Mr Johnson did not answer the call. A voicemail message was left advising Mr Johnson that a completed application was still outstanding and advising him that the matter may be dismissed if a completed application was not received.
A final attempt to contact Mr Johnson on his nominated telephone number, was made on 22 February 2022. Mr Johnson did not answer the call. A voicemail message was left advising Mr Johnson that a completed application was still outstanding and advising him that the matter may be dismissed if a completed application was not received.
Rule 9 of the Fair Work Commission Rules 2013 (Rules) governs applications made by telephone in the Commission. Rule 9 states as follows:
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 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.
Having regard to the above, Mr Johnson has failed to file a completed application.
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
(c) the application has no reasonable prospect of success.
I am satisfied that the application was not made in accordance with the FW Act as Mr Johnson has not completed a Form F2. For this reason I order that the application is dismissed under s.587(1)(a) of the FW Act.
COMMISSIONER
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