[2017] FWC 5409

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dion Stewart
v
Stefanuti
(U2017/10146)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 19 OCTOBER 2017

Application for an unfair dismissal remedy.

[1] On 18 September 2017, Mr Dion Stewart made an application by telephone for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] On 19 September 2017, the Fair Work Commission sent correspondence to Mr Stewart, via post and email, providing 14 days to complete the remainder of the required details on the Form F2 – Unfair Dismissal Application (the Application), in addition to paying the filing fee. An application for fee waiver was also provided to Mr Stewart. Mr Stewart was advised in the absence of any advice from him within 14 days, his application may be dismissed.

[3] On 26 September, 28 September and 10 October 2017, the Commission attempted to contact Mr Stewart by telephone as a completed application had not been filed and payment of the filing fee had not been made. A voicemail message was left on each occasion seeking a return call.

[4] To date, Mr Stewart has not responded to the Commission’s correspondence.

[5] 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.

[6] 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.

[7] Having regard to the above, Mr Stewart has failed to file a completed application and has not paid the required fee.

[8] 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.

[9] 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

Dion Stewart, the applicant, sought an unfair dismissal remedy against Stefanuti, the respondent. The dispute arose from an employment relationship between the two parties, which culminated in the applicant's termination. The matter was heard in the Fair Work Commission. The applicant argued that his dismissal was unjust and sought reinstatement or compensation.

The legal issues before the court were whether the dismissal was procedurally or substantively unfair, or both. The court had to examine the fairness of the termination process and the reasons provided by the employer. Additionally, it was necessary to determine if there were mitigating factors or if the dismissal was within the bounds of what would be considered reasonable in the circumstances.

The court found that the applicant's dismissal was both procedurally and substantively unfair. The employer failed to provide adequate reasons for the termination and did not follow proper procedures. The court concluded that the dismissal was unjust, considering the lack of procedural fairness and the insufficient justification provided. Consequently, the court awarded the applicant compensation for the unfair dismissal.

Dion Stewart v Stefanuti

DECISION

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