DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Karen Souren
v
Richmond Wellbeing
(U2017/2336)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 4 MAY 2017

Application for relief from unfair dismissal.

[1] On 3 March 2017, Ms Karen Souren made an application by telephone for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] On 6 March 2017, the Fair Work Commission (the Commission) sent email correspondence to Ms Souren, providing her 14 days from the date of making the application to complete an enclosed Form F2 – Unfair Dismissal Application (the application) prepared in response to her telephone application. Mr Souren was advised that a failure to return a completed application and payment/waiver form may result in her application being dismissed.

[3] The Commission sent Ms Souren a further email on 15 March 2017 requesting she make contact to discuss her application as a matter of urgency. This correspondence advised Ms Souren that the Commission was awaiting information from her before it could progress her application further.

[4] On 16 March 2017, Ms Souren contacted the Commission by telephone and advised she did not receive the application form sent to her for completion. Ms Souren was informed she had been sent it twice. Her email address was confirmed and she provided the Commission with her correct telephone number. The previously sent correspondence enclosing an application form was then resent to Ms Souren and she was advised that she should provide the Commission with a completed form as soon as possible and by 20 March 2017 at the latest.

[5] On 28 March 2017, the Commission attempted to telephone Ms Souren to discuss her application, however she could not be reached and a voice message could not be left.

[6] On 31 March 2017, the Commission made another attempt to contact Ms Souren by telephone, however again she could not be reached and a voice message could not be left.

[7] Rule 9 of the Fair Work Commission Rules 2013 (the Rules) governs applications made by telephone in the Commission:

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

(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.

[8] Section 395 of the Act, which deals with application fees, provides:

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.

[9] Having regard to the above, Ms Souren has failed to file a completed application and did not pay the required fee.
[10] Section 587(1) of the 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.

[11] Having regard to the circumstances of this matter, I am satisfied that the application was not accompanied by the fee as prescribed by the Act despite the multiple attempts by the Commission to have Ms Souren address this. The application is therefore not made in accordance with the Act. For this reason, the application is dismissed under s.587(1)(a) of the Act. An Order giving effect to this decision will be issued accordingly.
DEPUTY PRESIDENT
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Karen Souren v Richmond Wellbeing

[2017] FWC 2271

4 MAY 2017

DECISION