Deanne Turner v Ngwala Willumbong Ltd

[2019] FWC 3598

[2019] FWC 3598

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Deanne Turner
v
Ngwala Willumbong Ltd
(U2019/2047)

DEPUTY PRESIDENT CLANCY MELBOURNE, 27 MAY 2019

Application for an unfair dismissal remedy.

[1] On 26 February 2019, Ms Deanne Turner made an application by telephone to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] On 27 February 2019, the Commission sent correspondence to Ms Turner’s nominated email address confirming that she had made an application with the Commission on 26 February 2019. The correspondence advised that as her Form F2 – Unfair Dismissal Application (Form F2) was incomplete, she was required to complete the required sections and return this to the Commission. The correspondence also advised that the Form F2 was required to be signed and dated, as well as accompanied by payment of the application fee or a completed Form F80 – Waiver of application fee. The correspondence further warned that if the application fee was not paid or an application to have the fee waived was not made within 14 days, Ms Turner’s application may be dismissed.

[3] The Commission’s records indicate that the correspondence bounced back later the same day, indicating that it had not been successfully sent to Ms Turner’s nominated email address. Following this, the Commission attempted to telephone Ms Turner but was unable to reach her, so a voicemail message was left requesting her return call.

[4] On 6 March 2019, a telephone call was received from an individual acting on Ms Turner’s behalf. The individual corrected Ms Turner’s nominated email address and confirmed that the telephone number on the Commission’s records was correct. The individual also requested that the correspondence be resent so that he could lodge an amended application. Following this, the Commission sent correspondence to Ms Turner’s confirmed email address, advising that the rule governing applications by telephone (Rule 9 of the Fair Work Commission Rules 2013) states that a telephone application would not be further processed until the application fee is paid and the signed, completed Form F2 is returned to the Commission. The correspondence requested Ms Turner to complete her Form F2 and make payment of the application fee within 14 days, and warned that if she did not do so, her application may be dismissed.

[5] As no response was received from Ms Turner, the Commission attempted to follow her up by telephone on 27 March 2019. On this occasion, Ms Turner was unable to be reached and a voicemail message was left requesting her return call.

[6] On 15 May 2019, the Commission sent final correspondence to both Ms Turner’s nominated email and postal addresses. The correspondence again requested that she provide a completed Form F2 and payment of the application fee, and warned that in the absence of any advice from her within seven days, her application may be dismissed.

[7] To date, since the making of her application over the telephone on 26 February 2019, no response from Ms Turner has been received, the completed Form F2 has not been filed, and no payment of the application fee has been made.

[8] 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.”

[9] Section 587(1) of the Act provides:

“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.”

[10] Having regard to the above, I am satisfied the application was not made in accordance with the Act as Ms Turner has failed to file a completed Form F2 and has not paid the required application fee. As such, Ms Turner’s application is dismissed pursuant to s.587(1)(a) of the Act.

[11] An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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