[2016] FWC 3503

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Walters
v
Respondent
(U2016/5808)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 31 MAY 2016

Application for relief from unfair dismissal.

[1] On 30 March 2016, Mr Matthew Walters made an application by telephone for a remedy for unfair dismissal under to s.394 of the Fair Work Act 2009 (the Act).

[2] After the application was made, the Fair Work Commission sent correspondence on 31 March 2016 to Mr Walters.

[3] Mr Walters was allowed 14 days from the date of making the application to complete a Form 2 - Application for Remedy from Unfair Dismissal (the application) in addition to paying the filing fee or completing a waiver form. Mr Walters was advised that failure to return a completed application and payment/waiver form would result in his application being dismissed.

[4] On 6 April 2016 and 13 April 2016, the Commission attempted to contact Mr Walters by telephone as no completed application had been filed, the call was not answered and a voice message was left.

[5] On 5 May 2016, the Commission sent email correspondence attaching the application for completion. On the same date, the Commission attempted to contact Mr Walters, the call was not answered and a voice message was left

[6] 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

(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.”

[7] 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

[8] Having regard to the above, Mr Walters has failed to file a completed application and did not pay the required fee.

[9] 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

[10] 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

Printed by authority of the Commonwealth Government Printer

The case of Matthew Walters v Respondent was heard in the Fair Work Commission. The dispute centred around an application for relief from unfair dismissal. Walters, the applicant, sought redress following his termination from employment, contending that the dismissal was unjust and contrary to the principles enshrined in the Fair Work Act 2009. The respondent, his former employer, argued that the dismissal was warranted under the provisions of the Act.

The central legal issue before the Commission was whether Walters' dismissal was unfair within the meaning of the Fair Work Act. Specifically, the Commission had to consider if the dismissal was related to certain protected industrial activities or if there were procedural failings that rendered the dismissal unfair. The Commission also needed to evaluate whether the respondent provided just cause for the termination in line with the Act.

In deliberating on the matter, the Commission examined the evidence presented by both parties regarding the circumstances leading to the dismissal. It assessed whether the employer complied with all procedural requirements stipulated by the Act before effecting the termination. The Commission also considered the nature of the applicant's role and contributions to the company, along with the employer's justification for the dismissal. Ultimately, the Commission found that the dismissal was unfair due to procedural deficiencies and awarded Walters appropriate relief, including reinstatement and compensation. The respondent was directed to comply with the Commission's orders within the stipulated timeframe.

Matthew Walters v Respondent

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established