John Welldon v Australian Fibre Optic Solutions

[2013] FWC 4817

[2013] FWC 4817

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Welldon
v
Australian Fibre Optic Solutions
(U2013/10415)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 18 JULY 2013

Application dismissed pursuant to section 587 of the Fair Work Act 2009.

[1] On 12 June 2013, an application pursuant to section 394 of the Fair Work Act 2009 (the Act) for remedy for unfair dismissal was lodged by Mr John Welldon (the Applicant).

[2] Section 609(1) of the Act provides that after consultation with other Commission Members, the President may issue procedural rules in relation to the practice and procedure to be followed by the Fair Work Commission (the Commission) or the conduct of business in relation to matters allowed or required to be dealt with by the Commission. Section 609(2) of the Act states that the procedural rules may provide for the requirement for making applications to the Commission.

[3] Rule 6.2 of the Fair Work Australia Rules 2009 (the Rules) provides:

6.2 Subject to these Rules:

(a) an application to FWA must be made using the form in Schedule 2 that is specified for the purpose in Schedule 1; and

(b) notice must be given to FWA using the form in Schedule 2 that is specified for the purpose in Schedule 1.

[4] Schedule 1 of the Rules provides for application for Unfair Dismissal Remedy in accordance with Form F2.

[5] The Form F2 filed by the Applicant in the Commission was incomplete as no details were filed by the Applicant after making a telephone application.

[6] On 12 June 2013 and 2 July 2013 the Applicant was requested by letter to provide further details to complete an application after providing information for a telephone application.

[7] On 12 July 2013 the Applicant was phoned to provide a completed application. There was no answer and a message was left to contact the Brisbane Registry of the Commission.

[8] The Applicant has not contacted the Commission nor provided the necessary details as requested.

[9] Section 587 of the 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 prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[10] In these circumstances, I have formed the opinion that the Application was not made in accordance with the Act.

[11] Consequently, I have decided to dismiss the application pursuant to section 587(1)(a) of the Act.

DEPUTY PRESIDENT

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