John Linwood v SMW Drilling Services Pty Ltd

[2021] FWC 3119

[2021] FWC 3119

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Linwood
v
SMW Drilling Services Pty Ltd
(U2021/3951)

COMMISSIONER BISSETT MELBOURNE, 1 JUNE 2021

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

[1] On 10 May 2021 Mr John Linwood 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 Mr Linwood’s nominated email and postal addresses providing 14 days from the date of making the telephone application to complete a Form F2 - Unfair Dismissal Application (Application). Mr Linwood was advised that failure to return a completed application by 24 May 2021 may result in his application being dismissed. An SMS notification was also sent to Mr Linwood’s nominated telephone number requesting he contact the Commission.

[3] On 13 May 2021 Mr Linwood contacted the Commission by telephone. Mr Linwood advised he had received the SMS notification requesting that he contact the Commission. The Commission informed Mr Linwood that it is yet to receive his completed application and he is required to provide a completed Form F2 application by 24 May 2021.

[4] On 24 May 2021 the Commission attempted to contact Mr Linwood on his nominated telephone number as no completed application had been filed. Mr Linwood did not answer the call. A voicemail message was left requesting Mr Linwood to contact the Commission. Mr Linwood has not done so.

[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] Mr Linwood has, at the time of issuing this decision, failed to file a completed application. The most recent attempt to contact him has been unsuccessful.

[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 Linwood has not completed a Form F2 application. 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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