Michael Gonczarek v Koroneos Group T/A Norlane Hotel

[2021] FWC 5143

[2021] FWC 5143

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Gonczarek
v
Koroneos Group T/A Norlane Hotel
(U2021/6483)

COMMISSIONER BISSETT MELBOURNE, 19 AUGUST 2021

Application for relief from unfair dismissal – incomplete telephone application – dismissal under s587 at the Commission’s initiative.

[1] On 26 July 2021, Mr Michael Gonczarek made an application by telephone to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[1] On 26 July 2021 the Commission sent correspondence to Mr Gonczarek’s nominated email address providing 14 days to complete the Form F2 - Unfair Dismissal Application (Form F2 application) commenced by telephone and provided with the correspondence and to complete a fee waiver form. A fee waiver form was provided with this correspondence. Mr Gonczarek was advised that failure to return a completed Form F2 application and a completed fee waiver form may result in his application being dismissed.

[2] Later that day an SMS notification was sent to Mr Gonczarek’s nominated telephone number, requesting he contact the Commission.

[3] On 16 August 2021, the Commission attempted to contact Mr Gonczarek as no completed Form F2 application had been filed. Mr Gonczarek did not answer the call. A voicemail message was left requesting he contact the Commission. Mr Gonczarek did not return the Commission’s call.

[4] On 18 August 2021, the Commission again attempted to contact Mr Gonczarek on his nominated telephone as he had failed to file his Form F2 application however Gonczarek failed to answer the call. A voicemail message was left requesting a call back. Mr Gonczarek did not return the call.

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

9Telephone 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.

[6] Having regard to the above, Mr Gonczarek has failed to file a completed Form F2 application and has not pay the required fee or file a complete fee waiver form.

[7] 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 prospect of success.

[8] Having regard to the circumstances of this matter, I am satisfied that the application was not made in accordance with the FW Act as Mr Gonczarek has not completed a Form F2 application, has not paid the required fee or filed a completed fee waiver form. 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

Printed by authority of the Commonwealth Government Printer

<PR732986>

 1   PR732987