DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Darcelle Wells
(U2021/6863)

COMMISSIONER BISSETT

MELBOURNE, 31 AUGUST 2021

Application for relief from unfair dismissal – incomplete application – dismissal under s.587 at the Commission’s initiative.

[1] On 4 August 2021, Ms Darcelle Wells made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The Form F2 – Application for Unfair Dismissal (Form F2) filed by Ms Wells was incomplete in that Ms Wells failed to provide details for the Respondent in this matter.

[3] On 5 August 2021, the Commission attempted to contact Ms Wells on her nominated telephone number. Ms Wells did not answer the call. A voicemail message was left requesting she provide contact details for the Respondent. Ms Wells returned the Commission’s call and advised that she would provide the Respondent information.

[4] Later that day the Commission emailed correspondence to Ms Wells’ nominated email address requesting that she provide the Respondent details as the application was incomplete. That correspondence also advised that if the information was not provided within 14 days, the application may be dismissed

[5] As the required information was not received, on 23 August 2021 the Commission again telephoned Ms Wells on her nominated telephone number. Ms Wells did not answer the call. A voicemail message was left requesting she contact the Commission regarding her incomplete application. The message also advised that if the details were not provided the application may be dismissed.

[6] Ms Wells telephoned the Commission later that day in response to the voicemail message. Ms Wells said she would email the Respondent details that day. Ms Wells was advised that if the information was not provided that day her application may be dismissed. Ms Wells failed to email the Commission the requested information.

[7] To date, Ms Wells has not provided the necessary details as requested.

[8] 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

[9] In these circumstances, I have determined that the application was not made in accordance with the FW Act.

[10] As such, the application is dismissed under s.587(1)(a) of the FW Act. An order 1 to this effect will be issued shortly.

COMMISSIONER

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CaseChat Overview and Summary

Darcelle Wells was an applicant before the Fair Work Commission seeking relief from an unfair dismissal. The application was deemed incomplete by the Commission and, pursuant to section 587, the matter was dismissed at the initiative of the Commission. The central issue before the Commission was whether the applicant's dismissal was justified, given that the application was found to be incomplete. The applicant argued that the dismissal was unfair and sought reinstatement or compensation. The Commission had to determine if the procedural error was substantial enough to warrant a dismissal under section 587 of the Fair Work Act.

The Commission considered the procedural requirements and the circumstances of the incomplete application. It held that the application did not comply with the necessary standards, and the failure to meet these standards was significant. The Commission found that the applicant had not provided sufficient information to allow a fair assessment of the merits of the case. Consequently, the Commission dismissed the application under section 587, which allows the Commission to dismiss an application if it is incomplete or otherwise does not comply with the necessary procedural requirements. The Commission concluded that the procedural shortcomings were too substantial to proceed with the application.

The Fair Work Commission upheld the dismissal of the application for relief from unfair dismissal, finding that the application was incomplete and did not meet the necessary standards. The Commission dismissed the application under section 587 of the Fair Work Act. The Commission's decision highlights the importance of meeting procedural requirements in applications for relief from unfair dismissal. The applicant was not granted relief, and no orders were made in favour of the applicant.

Darcelle Wells

DECISION

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Legal Principle Established