David Martin v Finance Funding Australia Pty Ltd T/A Finance Funding Australia

[2018] FWC 2128

[2018] FWC 2128

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.773—Termination of employment

David Martin
v
Finance Funding Australia Pty Ltd T/A Finance Funding Australia
(C2017/5374)

COMMISSIONER CRIBB MELBOURNE, 24 APRIL 2018

Application to deal with an unlawful termination dispute - incomplete application - application not made in accordance with the Act – application dismissed.

[1] On 27 September 2017, Mr Martin made an application to deal with an unlawful termination dispute pursuant to s.773 of the Fair Work Act 2009 (the Act).

[2] The application form (Form F9) filed by Mr Martin in the Fair Work Commission (the Commission) was incomplete in that Question 3.2, which asks which unlawful reason(s) set out in the Act was/were the basis for the termination of employment, was not completed.

[3] On 28 September 2017, the Commission unsuccessfully attempted to speak to Mr Martin by calling his mobile phone. A voicemail message was left advising that the Form F9 was incomplete as Question 3.2 was not completed, and requesting he contact the Commission. The Commission then wrote to the Applicant, on the same date, advising him that his application was incomplete (and provided him with a copy of his application), and requesting that he complete Question 3.2 and return the form to the Commission as soon as possible if he wished to proceed with his application. The letter also requested the applicant advise the Commission at his earliest convenience if he did not wish to proceed further with his application.

[4] On 5 October 2017 the Commission again attempted to speak with Mr Martin by telephone but was unsuccessful. A further voicemail message was left for Mr Martin to contact the Commission and advise as to how he wanted to proceed with his application.

[5] On 13 October 2017, the Commission once again attempted to speak with Mr Martin by calling his mobile phone, and after getting voicemail again left a further message requesting Mr Martin contact the Commission, as soon as possible, in regard to his application.

[6] On 16 October 2017, a further call was made to Mr Martin’s mobile phone, however it was not possible to leave a voice message.

[7] Upon allocation of the matter to the Commission as presently constituted, the Commission wrote to the applicant on 20 February 2018, detailing the previous attempts by the Commission to call him and the letter of 28 September 2017 requesting he complete his Form F9 application, or to advise the Commission if he no longer wishes to proceed with his application. It also noted that the Commission had not received a response to either its written or verbal communications with Mr Martin in relation to his application. Mr Martin was directed to advise the Commission and the respondent by 26 February 2018 as to whether or not he wished to proceed with his application, and to provide a completed Question 3.2 together with reasons for the absence of a response to the Commission’s communications, if he did wish to continue with his application. Mr Martin was also advised that a failure to respond by the due date may result in his application being dismissed.

[8] On 26 February 2018 Mr Martin called my Chambers and left a voicemessage providing his contact details and requesting a return call. On 28 February 2018 my Associate spoke with Mr Martin about his incomplete application. Mr Martin was asked whether he wished to proceed with his application, and he advised that he needed the day to consider it, and that he would email Chambers the same day to let us know what he has decided.

[9] On 20 March 2018 the Commission wrote to Mr Martin again, noting that Chambers had not heard from him since the phone call of 28 February 2018, and requested he let my Chambers know by Wednesday 21 March 2018 whether he wished to proceed with his application. He was again advised that he also needed to provide a completed Question 3.2 to the application and the reasons for the absence of a response to the Commission’s previous communications if he did wish to continue with his application. This information was also required by Wednesday 21 March 2018. Mr Martin was advised that a failure to respond by the due date may result in his application being dismissed.

[10] No response was received from Mr Martin, and a completed application form has not been filed.

“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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[11] Having regard to the circumstances of this matter, I am satisfied that as the application form was incomplete, the application was not made in accordance with the Act. Given that Mr Martin has made minimal attempt to engage with the Commission to complete his application, or advise of what he wishes to do with his application, despite numerous opportunities to do so, I am also satisfied that Mr Martin has, in effect, abandoned his application. As a result, it also has no reasonable prospect of success.

[12] In these circumstances, it is appropriate to dismiss the s.773 application. Accordingly, the application is dismissed pursuant to s.587(1)(a) and (c) of the Act. An order 1 to this effect will be issued separately.

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