[2017] FWC 4137

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Clint Hawke
v
Bowmans Rail
(U2017/6999)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 10 AUGUST 2017

Application for an unfair dismissal remedy.

[1] On 30 June 2017, Mr Clint Hawke made an application by telephone for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] On the same day as the application was made, the Fair Work Commission sent correspondence to Mr Hawke, providing 14 days to complete a Form F2 – Unfair dismissal application. The correspondence included a fee waiver application and Mr Hawke was advised that in the absence of any advice from him by 14 July 2017, his application may be dismissed.

[3] On 17 July, 19 July and 26 July 2017, the Commission attempted to contact Mr Hawke by telephone as a completed application and fee waiver form had not been filed. On each occasion, a message was left seeking a return call. On 19 July and 26 July 2017, Mr Hawke was advised he risked having his application dismissed if he failed to contact the Commission.

[4] 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 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.

[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, Mr Hawke 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.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case of Clint Hawke v Bowmans Rail was an application for an unfair dismissal remedy, heard by the Fair Work Commission. Clint Hawke, the applicant, sought relief on the grounds that his dismissal by Bowmans Rail, the respondent, was unjust and contrary to the principles of fairness. Hawke's employment was terminated under the pretext of redundancy, but he argued that the dismissal was in fact retaliatory, stemming from his complaints about unsafe working conditions and potential breaches of employment laws.

The central legal issues before the Commission were whether the dismissal was genuinely for redundancy, or whether it was motivated by an impermissible factor, specifically retaliation for raising concerns about workplace safety and compliance with employment standards. The Commission had to determine if the employer's reasons for dismissal were based on genuine operational requirements or if they were a pretext for retaliating against Hawke for his whistleblowing activities. Additionally, the Commission considered whether the employer had adequately followed its own redundancy selection process and if the dismissal was proportionate to the circumstances.

In delivering its decision, the Commission examined the evidence presented by both parties. It found that the employer did not adequately demonstrate that the dismissal was for genuine redundancy reasons. Instead, the Commission concluded that the employer's actions were retaliatory, as evidenced by the timing of the dismissal in relation to Hawke's complaints and the employer's failure to follow its own redundancy selection procedures. The Commission held that the dismissal was unfair and ordered that Hawke be reinstated to his position, with appropriate back pay and compensation for the distress caused by the unlawful termination.

Clint Hawke v Bowmans Rail

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established