Jason Hart v Universal Cranes Roma Branch Queensland
[2024] FWC 1015
•23 APRIL 2024
| [2024] FWC 1015 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jason Hart
v
Universal Cranes Roma Branch Queensland
(U2024/2134)
| DEPUTY PRESIDENT CLANCY | MELBOURNE, 23 APRIL 2024 |
Application for relief from unfair dismissal – incomplete telephone application – dismissal under s587 at the Commission’s initiative.
On 28 February 2024, Mr Jason Hart 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).
On the same day as Mr Hart’s telephone call to the Commission, 28 February 2024, the Commission sent correspondence to Mr Hart’s nominated email address and postal address advising him that he had 14 days from the date of making the telephone application to complete the attached Form F2 – Unfair Dismissal Application (Form F2). Mr Hart was advised that a failure to return a completed application may result in his application being dismissed. An SMS notification was also sent to Mr Hart’s nominated telephone number requesting that he contact the Commission.
On 7 March 2024, Mr Hart contacted the Commission by telephone. Mr Hart advised that he was unable to provide a completed Form F2 until 25 March 2024 because of medical reasons. The Commission advised Mr Hart he had 14 days from the date of making the telephone application to complete the Form F2. Mr Hart was also advised that a failure to return a completed Form F2 may result in his application being dismissed. Mr Hart advised that if he did lodge a completed Form F2 after 14 days from making the telephone application, he could provide a medical certificate to support his lodgement.
On 21 March 2024, the Commission attempted to contact Mr Hart on his nominated telephone number, as a completed Form F2 had not been filed. Mr Hart did not answer the call. A voicemail message was left requesting that Mr Hart contact the Commission.
Rule 9 of the Fair Work Commission Rules 2013 (the Rules) governs applications made by telephone. 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.
Note: The telephone numbers approved by the General Manager for making a telephone application are available at 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 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.
In these circumstances, I am satisfied that the application was not made in accordance with the FW Act, as Mr Hart did not complete the Form F2 which was sent to him by the Commission, despite the multiple reminders to do so within 14 days of it being provided to him. In these circumstances, I am satisfied that it is appropriate to dismiss the purported application. An Order[1] to this effect will be issued with this decision.
DEPUTY PRESIDENT
[1] PR773625.
Printed by authority of the Commonwealth Government Printer
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