Luke Dallafiore v Smart Home Products P/L

[2017] FWC 2005

[2017] FWC 2005

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Luke Dallafiore

v

Smart Home Products P/L

(U2017/2879)

Deputy President Clancy MELBOURNE, 10 APRIL 2017

Application for an unfair dismissal remedy.

1. On 16 March 2017, Mr Luke Dallafiore made an application by telephone for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

1. On 17 March 2017, the Fair Work Commission (the Commission) sent correspondence to Mr Dallafiore, providing him 14 days from the date of making the application to complete an enclosed Form F2 – Unfair Dismissal Application (the application) prepared in response to his telephone application, in addition to paying the filing fee or completing a fee waiver form.  The correspondence included a fee waiver application.  Mr Dallafiore was advised that failure to return a completed application and payment/waiver form may result in his application being dismissed.

1. On 24 March 2017, the Commission telephoned Mr Dallafiore as no completed application had been filed or payment/waiver form received.  Mr Dallafiore confirmed he received the Commission’s correspondence of 17 March 2017 and advised he was experiencing problems with his computer.  Mr Dallafiore said he would complete the application and a fee waiver form and would attend Officeworks to print and scan it as soon as possible.

1. As no complete application or fee waiver form had been received, further correspondence was sent to Mr Dallafiore on 24 March 2017, advising that the necessary documentation was required as soon as possible and that in the absence of any advice from him within 14 days, his application may be dismissed.

1. On 29 March 2017, the Commission attempted to contact Mr Dallafiore by telephone as a completed application and payment/fee waiver had not yet been received.  On this occasion, the telephone call rang out with no voicemail facility available.

1. 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 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.

1. 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.

1. Having regard to the above, Mr Dallafiore has failed to file a completed application and did not pay the required fee.

1. 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.

1. 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 and 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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