Ms Lindsay Maree Burley v The Trustee for Steven Mullan Trust T/A Rocks Tavern SA

[2022] FWC 258

[2022] FWC 258

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Lindsay Maree Burley
v

The Trustee for Steven Mullan Trust T/A Rocks Tavern SA

(U2022/475)

COMMISSIONER BISSETT MELBOURNE, 9 FEBRUARY 2022

Application for an unfair dismissal remedy – application for an unfair dismissal remedy – failure to pay filing fee – dismissal under s.587 at the Commission’s initiative.

1. On 10 January 2022 Ms Lindsay Maree Burley (the Applicant) 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) alleging that she was unfairly dismissed by The Trustee for Steven Mullan Trust T/A Rocks Tavern SA (the Respondent).

1. On 10 January 2022 the Commission sent correspondence to the Ms Burley’s nominated email address providing 14 days from the date of making the telephone application to complete a Form F2 - Unfair Dismissal Application (Application) in addition to paying the filing fee or completing a waiver form. Ms Burley was advised that failure to return a completed application and provide payment or a waiver form may result in her application being dismissed.

1. On 24 January 2022 the Commission contacted Ms Burley on her nominated telephone number as no completed application had been filed. The Commission advised Ms Burley that a completed application and waiver were still outstanding. The Applicant indicated that they intended to complete and send the forms.

1. To date Ms Burley has failed to complete the Form F2 and lodge it with the Commission and pay the filing fee or apply for a waiver or otherwise contact the Commission.

1. Rule 9 of the Fair Work Commission Rules 2013 (FW 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.

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 FW Act, which deals with application fees, states as follows:

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, to date Ms Burley has failed to file a completed application and did not pay the required fee or file a complete waiver form.

1. 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.

1. Having regard to the circumstances of this matter I am satisfied that as Ms Burley has failed to make an application in accordance with the FW Act.

1. 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

<PR738159>

[1] PR738160

Printed by authority of the Commonwealth Government Printer