Jamieson Smith v Gleesons Farming Pty Ltd
[2022] FWC 3158
•29 DECEMBER 2022
| [2022] FWC 3158 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jamieson Smith
v
Gleesons Farming Pty Ltd
(U2022/10788)
| COMMISSIONER BISSETT | MELBOURNE, 29 DECEMBER 2022 |
Application for an unfair dismissal remedy
On 11 November 2022 Mr Jamieson Smith 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) alleging that he was unfairly dismissed by Gleesons Farming Pty Ltd (the Respondent).
During the lodgement of his application by telephone, the Commission discussed payment of the required fee with Mr Smith. However, Mr Smith did not pay the required fee or file a completed waiver form at that time.
On 11 November 2022 the Commission sent correspondence to Mr Smith’s nominated email address attaching the partially completed Form F2 - Unfair Dismissal Application (Application). This correspondence advised that Mr Smith must complete the Application in addition to paying the filing fee or completing a waiver form within 14 days. Mr Smith was advised that failure to return a completed application and provide payment or a waiver form may result in his application being dismissed.
On 23 November 2022 the Commission contacted Mr Smith on his nominated telephone number as no response had been received. The Commission advised Mr Smith that payment or a waiver were still outstanding. Mr Smith indicated that he would either make payment or apply to have the fee waived. The Commission advised his matter may be dismissed if payment was not received by close of business 25 November 2022.
To date there has been no response from Mr Smith. The required fee has not been paid or a completed waiver form returned and a completed application form has not been received.
Rule 9 of the Fair Work Commission Rules 2013 (FW Rules) governs applications made by telephone in the Commission. Rule 9 states as follows:
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.
(3) 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.
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.
Section 587(1) of the FW 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 prospect of success.
In the circumstances where Mr Smith has failed to provide a completed application, pay the filing fee or provide a waiver form I have determined that he has failed to make an application in accordance with the FW.
As such, I order that the application be dismissed under s.587(1)(a) of the FW Act.
COMMISSIONER
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