Dylan Van Der Veen v Rustica Highpoint

[2023] FWC 2508

[2023] FWC 2508

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Dylan Van Der Veen
v

Rustica Highpoint

(C2023/5214)

DEPUTY PRESIDENT CLANCY MELBOURNE, 4 OCTOBER 2023

Application to deal with contraventions involving dismissal.

1. On 29 August 2023, Mr Dylan Van Der Veen (Applicant) made an application under s.365 of the Fair Work Act 2009 (Cth) (Act). Mr Van Der Veen alleges that he was dismissed in contravention of the general protection provisions in Part 3-1 of the Act.

1. The application was accompanied by the application fee prescribed by the Fair Work Regulations 2009 (Cth) (Regulations). However, Mr Van Der Veen’s Form F8 – Application Form (Form F8) was incomplete. Question 1.3,  What date did your dismissal take effect, was answered with “n/a”.

1. At 3:53pm on 30 August 2023, the Commission called Mr Van Der Veen on his nominated telephone number, the call was not answered by Mr Van Der Veen and a voice message was left requesting that he contact the Commission to provide the effective dismissal date.

1. At 4:01pm on 30 August 2023, the Commission emailed a letter to Mr Van Der Veen’s nominated email address advising him that his application was incomplete. Mr Van Der Veen was advised that he had until Wednesday, 13 September 2023, to complete his application by answering question 1.3 and filing a completed Form F8. The letter also advised Mr Van Der Veen of the Commission’s Workplace Advice Service, it stated the below and included hyperlinks to the Commission’s website:

"Our Workplace Advice Service may be able to connect you with a lawyer who can give you 1 hour of free advice about your case. You can find out more, including whether you’re eligible to use the service, on our website.

If you’re not eligible but still need help, you can find out where to find legal help on our website.”

1. At 4:16pm on 30 August 2023, Mr Van Der Veen called the Commission and advised that he was uncertain what the effective dismissal date was, due to his employer not having provided him with confirmation. Mr Van Der Veen was advised that he could seek confirmation from the Respondent, or he could seek some legal advice. Mr Van Der Veen was reminded that he had until 13 September 2023 to provide the effective dismissal date in writing. Mr Van Der Venn confirmed that he would provide the effective dismissal date in writing as soon as possible.

1. At 6:11pm on 30 August 2023, an SMS notification was sent to Mr Van Der Veen’s nominated telephone number, reminding Mr Van Der Veen of his incomplete application.

1. On 13 September 2023, the Commission attempted to contact Mr Van Der Veen on his nominated telephone number. Mr Van Der Veen did not answer the call and a voicemail message was left requesting that Mr Van Der Veen provide an effective dismissal date, or his matter would be at risk of dismissal.

1. On 27 September 2023 a final attempt was made by the Commission to contact Mr Van Der Veen on his nominated telephone number. The call was not answered, and a voicemail message was left advising Mr Van Der Veen that an effective dismissal date was needed in order to deem his application complete and requesting that he contact the Commission by close of business on 28 September 2023, or his matter would be dismissed.

1. To date, Mr Van Der Veen has not provided a complete Form F8 application, nor made any further contact with the Commission.

Legislative framework

1. Section 587 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.

…

(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.

Consideration and conclusion

1. In considering all the circumstances, I am satisfied that the application form in question was incomplete, and the application has not been made in accordance with the Act. Given the absence of a completed Form F8, with a stated effective dismissal date, it is likely that there is no valid application before the Commission and no further action is required. A non-compliant application is directly contemplated by s.587(1)(a) of the Act.

1. Despite the attempts by the Commission to contact him, the reminders and the multiple requests, Mr Van Der Veen has not responded. Mr Van Der Veen was reminded on multiple occasions that if he failed to provide a completed Form F8, his application would be at risk of dismissal. Mr Van Der Veen was also advised that he could apply to seek legal advice through the Commission’s Workplace Advice Service or consult the Commission’s website for more information on how he could get legal help. The Commission has not been made aware of any further countervailing circumstances impacting on Mr Van Der Veen’s capacity to respond to the Commission’s attempts to contact him since 30 August 2023, or provide a complete Form F8. In these circumstances, I am satisfied that it is appropriate in all the circumstances to dismiss the purported application.

1. The application is dismissed. An Order[1] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] PR766673.

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