Kyle Hexter v Uzar Investments Pty Ltd

[2021] FWC 1095

[2021] FWC 1095

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Kyle Hexter
v
Uzar Investments Pty Ltd
(C2020/7209)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 19 MARCH 2021

Application to deal with contraventions involving dismissal.

[1] Mr Kyle Hexter (Applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). He alleges that he was dismissed by Uzar Investments Pty Ltd (Respondent) in contravention of the general protection provisions of the Act.

[2] I have decided to dismiss the application. The reasons for this decision follow.

Context

[3] The application was received by the Commission on 23 September 2020 via telephone lodgement.

[4] On 23 September 2020, the Commission sent a letter to the Applicant’s nominated mailing address, via express post, providing:

“You made an application by telephone with the Fair Work Commission (the Commission) for a general protections dispute in relation to your employment with Uzar Investments Pty Ltd on 23 September 2020.

A telephone application cannot be processed until a written application is completed and signed (Rule 9, FWC Rules 2013).

Enclosed is the Form F8 produced by the Commission containing information you provided by telephone. Please check the details of this application, correcting any errors, and fill out the remaining sections, particularly:

•  whether you will need an interpreter for the conference

•  what reasons were given to you by your employer for dismissing you (Question 1.3)

•  what remedy you are seeking (Question 2.1)

•  describe the action of the employer which has led to this application being lodged (Question 3.1)

•  explain how this action has adversely affected you (Question 3.2)

•  indicate what sections of the Fair Work Act 2009 have been contravened by the employer (Question 3.3).

You must complete, sign and return the Form F8 to the Commission within 14 calendar days after the day on which the Commission gives you the written application.”

[5] The correspondence advised that the Applicant’s telephone application could not be processed by the Commission until a written, signed Form F8 application was received.

[6] On 7, 12 and 13 October 2020, the Commission telephoned the Applicant regarding his incomplete application. On each occasion, the call was unanswered and there no option to leave a voicemail message.

[7] A SMS text message was subsequently sent to the Applicant on 14 October 2020 regarding the incomplete application, and which requested the Applicant contact the Commission urgently.

[8] On 15 October 2020, a letter was sent to the Applicant via express post, which advised the Applicant that he was required to complete, sign and return a written Form F8 application to the Commission and that his claim could not be processed until it was received.

[9] On 19 February 2021, a further letter was sent to the Applicant, via express post, requesting he complete and return the Form F8 application and advising that if the Commission did not receive the completed application within 14 calendar days the application may be dismissed.

[10] On 1 March 2021, the Commission telephoned the Applicant regarding his incomplete application. The call was unanswered and there no option to leave a voicemail message. The telephone message said that a standard text message would be sent to the number advising of the missed call.

[11] On 2 March 2021 at 9.43 am, a SMS text message was sent to the Applicant requesting he contact the Commission and advising that in the absence of a response from him, the application may be dismissed.

[12] On 2 March 2021 at 9.58 am, the Commission telephoned the Applicant who advised he had not received any messages or emails regarding his application. He was advised an email would be sent to him to complete his application and return it to the Commission by the end of the week.

[13] On 2 March 2021 at 10.27 am, the Commission emailed the Applicant a Form F8 and requested that he complete the same and return it within 14 days. The email advised the Applicant his application may be dismissed if he did not comply with this timeframe.

[14] To date, the Applicant has not provided a completed Form F8 to the Commission or otherwise corresponded with the Commission.

Legislative framework

[15] Rule 9 of the Fair Work Commission Rules 2013 (Rules) governs applications made by telephone in the Commission. Rule 9 states as follows:

9 Telephone applications

(1) This rule applies to a person wanting to:

(a) make an application under section 365 of the Act to the Commission; or

(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:

(i) for an application under section 365 of the Act—the fee mentioned in regulation 3.02 of the Regulations; or

(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.

(emphasis added)

[16] Section 585 of the Act provides that an application to the Commission must be in accordance with the procedural rules (if any) relating to applications of that kind. A note to the section provides that the Commission may “under s 587, dismiss an application that is not made in accordance with the procedural rules.”

[17] 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.

(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.

(emphasis added)

Consideration and conclusion

[18] Despite the Commission’s attempts to progress the application, the Applicant has failed to complete and return a signed Form F8 application. Accordingly, the application has not been made in accordance with the Rules, as required by s 585 of the Act.

[19] In the assessment of whether to dismiss the application, I have considered the observations made by a Full Bench in Peter Viavattene v Health Care Australia. 1 The Full Bench said that “there is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant’s conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative…”2

[20] The Commission has corresponded with the Applicant on various occasions since September 2020 and afforded the Applicant multiple opportunities to advance his application. In these circumstances, I am satisfied that there is a clear basis for dismissing the application and such power could not be described as being exercised hastily. 3

[21] In these circumstances, I find that the application has not been made in accordance with the Act. I have decided to exercise the discretion under s 587(1)(a) of the Act to dismiss the application.

[22] The application (C2020/7209) is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR727380>

 1   [2013] FWCFB 2532

 2   Ibid at [39]

 3   Nick Williams v Sydney Gay & Lesbian Business Association t/a Sydney Gay & Lesbian Business Association[2019] FWC 4399 at [12]