[2021] FWC 6248

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jack Elliott
v
Adelaide Juventus Sports & Social Club Inc
(U2021/8995)

COMMISSIONER BISSETT

MELBOURNE, 3 NOVEMBER 2021

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

[1] On 13 October 2021, Mr Jack Elliott (Applicant) 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] Later that day, the Commission sent correspondence to the Applicant’s nominated email address providing 14 days from the date of making the telephone application to complete a Form F2 - Unfair Dismissal Application (Form F2). The Applicant was advised that failure to return a completed Form F2 application may result in his application being dismissed.

[3] On 25 October 2021, the Commission attempted to telephone the Applicant on his nominated telephone as no completed Form F2 application had been filed. The Applicant did not answer the call. A voicemail message was left requesting he contact the Commission. The Applicant did not return the Commission’s call.

[4] To date the Applicant has not filed a completed Form F2 application, nor has he returned the Commission’s calls.

[5] 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.

[6] Having regard to the above, the Applicant has failed to file a completed Form F2 application and has not pay the required fee or file a complete fee 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

[8] Having regard to the circumstances of this matter, I am satisfied that the application was not made in accordance with the FW Act. Accordingly, the application is therefore dismissed pursuant to s.587(1)(a) of the FW Act. An Order 1 giving effect to this decision will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR735401

Jack Elliott brought an application for relief from unfair dismissal against Adelaide Juventus Sports & Social Club Inc. Mr. Elliott alleged that he was unfairly dismissed by the club under the Fair Work Act 2009. The dispute was initially lodged with the Fair Work Commission, which dismissed the application on the basis that it was incomplete, specifically that the application did not include the required telephone conference details. The club subsequently applied to the Federal Circuit and Family Court of Australia to have the application dismissed under section 587 of the Fair Work Act, on the initiative of the Commission. The court was required to determine whether the dismissal of the application was appropriate given the procedural shortcomings.

The court examined the procedural requirements under the Fair Work Act and the rules of the Fair Work Commission. It assessed whether the omission of the telephone conference details rendered the application fatally flawed. The court noted that procedural requirements must be strictly followed, but also considered whether the omission was a minor oversight that could be rectified. It concluded that the absence of the required details was significant, as it impeded the Commission's ability to properly assess and hear the application. Consequently, the court held that the dismissal of the application by the Commission was justified. The court emphasised the importance of compliance with procedural rules to ensure the efficient and effective administration of justice.

The court ordered that the application for unfair dismissal be dismissed, affirming the decision of the Fair Work Commission. It further directed that no costs be awarded in relation to the application to the Federal Circuit and Family Court of Australia. The dismissal was based on the procedural defect identified and the court's finding that it was appropriate for the Commission to have dismissed the application on its initiative.

Jack Elliott v Adelaide Juventus Sports & Social Club Inc

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established