Michael Edmiston v East Coast Electroplating

[2020] FWC 1268

[2020] FWC 1268

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Edmiston
v
East Coast Electroplating
(U2020/1609)

COMMISSIONER BISSETT MELBOURNE, 12 MARCH 2020

Application for relief from unfair dismissal – incomplete telephone application – dismissal under s.587 at the Commission’s initiative.

[1] On 13 February 2020, Mr Michael Edmiston made an application by telephone for a remedy for unfair dismissal under to s.394 of the Fair Work Act 2009 (FW Act).

[2] On 14 February 2020 correspondence was sent to Mr Edmiston’s nominated email address requiring him to complete the remainder of the required details on the Form F2 – Unfair Dismissal Application, in addition to paying the filing fee. An application for fee waiver was also provided to Mr Edmiston. Mr Edmiston was advised failure to return a completed application within 14 days may result in his application being dismissed. Mr Edmiston was also advised that if he no longer wished to pursue his application he should file a notice of discontinuance.

[3] An SMS notification was also sent to Mr Edmiston nominated telephone number requesting that he contact the Commission to discuss his incomplete application.

[4] On 3 March 2020 the Commission contacted Mr Edmiston by telephone as no completed application had been filed. Mr Edmiston advised that he was unable to open the application form and the fee waiver form attached to the email. Whilst on the phone to Mr Edmiston the Commission emailed him the application form and the fee waiver form in separate emails. Mr Edmiston confirmed receipt of the emails and advised that he was able to open the documents. Mr Edmiston said he would return the documents “tomorrow”.

[5] As a completed application and payment had not been received, on 9 March 2020 the Commission attempted to telephone Mr Edmiston however a there was an automated message to the effect the person called was not available. No voicemail message was able to be left.

[6] To date Mr Edmiston has not filed a completed application, no payment of the application fee has been made and no fee waiver form received.

[7] Rule 9 of the Fair Work Commission Rules 2013 (the 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:

....

(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….

(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 FW Act, which deals with application fees, states that:

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, Mr Edmiston has failed to file a completed application and has not paid the required fee.

[10] Section 587(1) of the FW 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 FW Act and is therefore, not made in accordance with the FW Act. For this reason, the application is dismissed under s.587(1)(a) of the FW Act. An Order 1 giving effect to this decision will be issued shortly.

COMMISSIONER

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