DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Whitney
v
Respondent
(U2020/13631)

COMMISSIONER BISSETT

MELBOURNE, 5 NOVEMBER 2020

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

[1] On 14 October 2020, Mr Michael Whitney made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The application form filed by Mr Whitney was incomplete in that he did not provide:

a) the respondent (the employer details)

b) the commencement date of employment

c) the date of dismissal

[3] On 15 October 2020, the Commission attempted to contact Mr Whitney on his nominated telephone number to request the missing details. Mr Whitney did not answer the call. A voicemail message was left requesting Mr Whitney contact the Fair Work Commission.

[4] Later that day, the Commission emailed correspondence to Mr Whitney’s nominated email address advising that he provide further details as the application was incomplete and that the sections will need to be completed and the application returned to the Commission. That correspondence also advised that if the relevant information was not provided within 14 days, the application may be dismissed. An SMS notification was also sent to Mr Whitney’s nominated telephone number, requesting that he contact the Commission.

[5] Mr Whitney contacted the Fair Work Commission on 15 October 2020. Mr Whitney advised that he would send his documents to the Commission.

[6] As the required information was not received, on 23 October 2020 the Commission attempted to contact Mr Whitney on his nominated telephone number. A voicemail message was left requesting that he send us his completed application by 29 October 2020.

[7] Later that day, the Commission emailed correspondence to Mr Whitney’s nominated email address advising that he provide further details as the application was incomplete and sections will need to be completed on the application and returned to the Commission. That correspondence also advised that if the relevant information was not provided by 29 October 2020, the application may be dismissed.

[8] On 29 October 2020, the Commission made a final attempt to contact Mr Whitney on his nominated telephone number to request the missing details. Mr Whitney did not answer the call. A voicemail message was left request requesting Mr Whitney contact the Fair Work Commission by the end of the business day.

[9] To date, no response has been received and Mr Whitney has not provided the necessary details as requested.

[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

[11] In these circumstances, I have determined that the application was not made in accordance with the FW Act.

[12] As such, the application is dismissed under s.587(1)(a) of the FW Act. An order to this effect will be issued shortly.

COMMISSIONER

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CaseChat Overview and Summary

Michael Whitney, the applicant, sought relief from his dismissal by the Respondent. The case was heard by the Fair Work Commission. The primary issue before the Commission was whether Whitney had made a complete and valid application for relief from his dismissal, and if not, whether the dismissal should proceed under section 587 of the Fair Work Act 2009. Whitney argued that his application was valid, while the Respondent contended that it was incomplete and should therefore be dismissed. The Commission was tasked with determining whether the application met the necessary criteria for it to be considered valid.

The Fair Work Commission examined the application submitted by Whitney to determine if it met the formal requirements for an application for relief from unfair dismissal. It was noted that Whitney’s application was incomplete as it did not address all the required elements stipulated under the Fair Work Act 2009. The Commission found that Whitney's application did not include all necessary details and supporting documentation, and therefore did not comply with the procedural requirements for a valid application. Consequently, the Commission exercised its discretion under section 587 to dismiss the application on the basis that it was incomplete and invalid.

Given that Whitney's application was incomplete and invalid, the Fair Work Commission dismissed the application for relief from unfair dismissal. The Commission found that the application did not meet the necessary criteria for it to be considered valid, and therefore, the dismissal was upheld. The Commission's decision was based on the procedural shortcomings of Whitney's application and the mandatory nature of the requirements under the Fair Work Act 2009. Whitney's application for relief from dismissal was dismissed, and the dismissal was upheld by the Fair Work Commission.

The Fair Work Commission ordered that the dismissal of Michael Whitney by the Respondent be upheld. Whitney's application for relief from unfair dismissal was dismissed due to its procedural incompleteness. The Commission found that Whitney's application did not comply with the necessary requirements under the Fair Work Act 2009, and therefore, the dismissal was maintained. The decision was based on the insufficiency of the application and the mandatory procedural requirements for an application for relief from unfair dismissal.

Michael Whitney 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