David Dixon v ALH Group T/A the Dunsborough Tavern

[2021] FWC 1118

[2021] FWC 1118

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Dixon
v
ALH Group T/A The Dunsborough Tavern
(U2021/611)

COMMISSIONER BISSETT MELBOURNE, 2 MARCH 2021

Application for an unfair dismissal remedy.

[1] On 25 January 2021 Mr David Dixon 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).

[2] On 25 January 2021 the Commission sent correspondence to Mr Dixon’s nominated email address providing 14 days from the date of making the telephone application to complete a Form F2 - Unfair Dismissal Application (Application) in addition to paying the filing fee or completing a waiver form. A waiver form was provided with this correspondence. Mr Dixon was advised that failure to return a completed application and provide payment or a waiver form may result in his application being dismissed.

[3] On 8 February 2021 the Commission attempted to contact Mr Dixon on his nominated telephone number as no completed application had been filed. Mr Dixon did not answer the call. A voicemail message was left requesting that Mr Dixon contact the Commission on the helpline number with respect to a completed application form. The voicemail message also informed him that his application may be dismissed if the Commission did not receive a completed application form.

[4] Later that day Mr Dixon contacted the Commission via the helpline. Mr Dixon advised that he was under the impression that the relevant documents were going to be posted to him. The Commission advised Mr Dixon that there was no record of this on file. The Commission suggested that Mr Dixon check his email and return the forms as soon as possible. Mr Dixon advised that due to his poor reading and writing skills he would engage a friend to help him. The Commission reiterated to Mr Dixon that a completed application would need to be provided as soon as possible or the matter may be dismissed. Mr Dixon apologised for the delay and requested that the application form and incomplete letter be resent to him. The Commission resent the application form and incomplete letter to Mr Dixon’s nominated email address.

[5] On 11 February 2021 Mr Dixon contacted the Commission’s helpline and advised that he had not received the emails that the Commission had sent. Mr Dixon also advised that he was no longer able to access his email address. Mr Dixon provided the email address of his friend. The Commission forwarded the correspondence to Mr Dixon’s friend’s email address as requested by Mr Dixon and noted in the email that the application should be completed and returned as soon as possible to avoid the matter being dismissed.

[6] On 15 February 2021 the Commission contacted Mr Dixon on his nominated telephone number to follow up on the application. Mr Dixon advised that he had someone coming over the next day to help him with the application. The Commission advised Mr Dixon to contact them via the helpline the next day if he had any further difficulty completing the application.

[7] To date there has been no further contact from Mr Dixon.

[8] Rule 9 of the Fair Work Commission Rules 2013 (Rules) governs applications made by telephone in the Commission. Rule 9 states as follows:

9Telephone 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.

[9] Section 395 of the FW Act, which deals with application fees, states as follows:

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, Mr Dixon has failed to file a completed application form – despite numerous extensions of time to do so – and did not pay the required fee or file a complete waiver form.

[11] 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.

[12] Having regard to the circumstances of this matter, I am satisfied that the application was not made in accordance with the FW Act as Mr Dixon has not completed a Form F2 and has not paid the required fee or filed a completed waiver form. For these reasons, the application is dismissed under s.587(1)(a) of the FW Act. An order 1 giving effect to this decision will be issued shortly.

COMMISSIONER

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