Flory Gullivindala v YSN

[2021] FWC 48

[2021] FWC 48

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Flory Gullivindala
v
YSN
(U2020/15589)

COMMISSIONER BISSETT MELBOURNE, 6 JANUARY 2021

Application for relief from unfair dismissal – incomplete telephone application – dismissal under s587 at the Commission’s initiative.

[1] On 7 December 2020, Mr Flory Gullivindala 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 7 December 2020 the Commission sent correspondence to Mr Gullivindala’s nominated email address and postal address advising him that he had 14 days from the date of receipt of the Form F2 - Unfair Dismissal Application (Application) (partially completed when he made the telephone application) to complete the Application which accompanied the correspondence and to pay the filing fee or complete a waiver form. A waiver form was provided with this correspondence. Mr Gullivindala 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 18 December 2020, the Commission attempted to contact Mr Gullivindala on his nominated telephone number as no completed application had been filed. Mr Gullivindala did not answer the call. A voicemail message was left advising Mr Gullivindala that a completed application and payment or waiver form were still outstanding and will need to be returned to the Commission otherwise the application is at risk of being dismissed.

[4] 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.

[5] 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.

[6] Having regard to the above, Mr Gullivindala has failed to file a completed application and did not pay the required fee or file a complete waiver form.

[7] 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.

[8] 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 Gullivindala has not completed a Form F2, has not paid the required fee or filed a completed waiver form. For this reason, 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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