Kerry Oakley v City Waters Luxury Apartments

[2019] FWC 4163

[2019] FWC 4163

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kerry Oakley
v
City Waters Luxury Apartments
(U2019/4260)

DEPUTY PRESIDENT CLANCY MELBOURNE, 17 JUNE 2019

Application for an unfair dismissal remedy.

[1] On 15 April 2019, Mr Kerry Oakley made an application by telephone to the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] On 16 April 2019, the Commission sent email correspondence to Mr Oakley, providing him 14 days from the date of making the application to complete an enclosed Form F2 – Unfair Dismissal Application (application) prepared in response to his telephone application, in addition to paying the filing fee or completing a fee waiver application. The correspondence included a fee waiver application. Mr Oakley was advised that failure to return a completed application and paying the filing fee or returning a fee waiver application may result in his application being dismissed.

[3] As no complete application, payment of the filing fee or fee waiver application had been received, email correspondence was sent to Mr Oakley on 10 May 2019, advising that the necessary documentation was required within 7 days and that in the absence of any advice from him within 7 days, his application may be dismissed. The Commission was unable to contact Mr Oakley via telephone as no telephone number had been supplied to the Commission.

[4] Rule 9 of the Fair Work Commission Rules 2013 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 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.

[5] Section 395 of the Act, which deals with application fee, 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.

[6] Having regard to the above, Mr Oakley has failed to file a completed application and did not pay the required fee or submit a fee waiver application.

[7] 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.

[8] Having regard to the circumstances of this matter, I am satisfied that the application was not made in accordance with the Act as Mr Oakley has not completed the application, paid the required application fee nor been granted a fee waiver. As such, Mr Oakley’s application is dismissed pursuant s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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