[2021] FWC 1937

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nathan Harnor
v
Australian Urban Tree Services Pty Limited
(U2021/2059)

COMMISSIONER BISSETT

MELBOURNE, 13 APRIL 2021

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

[1] On 12 March 2021, Mr Nathan Harnor 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).

[2] On 12 March 2021, the Commission sent correspondence to the Mr Harnor’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. Mr Harnor was advised that failure to return a completed application and provide payment may result in his application being dismissed.

[3] On 17 March 2021, Mr Harnor contacted the Commission by telephone. Mr Harnor advised he did not receive the correspondence sent from the Commission on 12 March 2021 and requested another copy. The Commission re-sent the correspondence by email to Mr Harnor’s nominated email address. Mr Harnor confirmed he had received the correspondence and provided payment of the filing fee.

[4] On 25 March 2021, the Commission contacted Mr Harnor on his nominated telephone number as no completed application had been filed. Mr Harnor advised he would attempt to lodge the completed application. The Commission requested Mr Harnor lodge a completed application by 26 March 2021.

[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 Harnor has failed to file a completed application.

[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

[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 Harnor has not completed a Form F2. 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

1 PR728499

Nathan Harnor sought relief from unfair dismissal against Australian Urban Tree Services Pty Limited at the Fair Work Commission. The central issue in the case was whether Mr. Harnor's application for relief was properly lodged under the Fair Work Act 2009. The dispute arose from Mr. Harnor's dismissal, and he contended that the dismissal was unfair. However, the crux of the case revolved around the procedural aspect of his application to the Fair Work Commission. Mr. Harnor had initially attempted to lodge his application over the telephone but had not completed the process. Subsequently, the Fair Work Commission initiated proceedings under section 587 of the Fair Work Act to address the dismissal.

The court had to determine whether the incomplete telephone application was sufficient to meet the procedural requirements under the Fair Work Act. Specifically, the court needed to examine whether the application could be considered as properly lodged despite its incompleteness. Additionally, the court had to assess if the Commission had the authority to proceed with the dismissal application at its own initiative due to the procedural shortcomings of the original application. These legal issues were pivotal in deciding whether the application could proceed and if the dismissal was to be reviewed on its merits.

In its reasoning, the court held that the incomplete telephone application did not satisfy the procedural requirements for lodging an application for relief from unfair dismissal. The court emphasized the necessity for a formal, written application to be properly submitted. Consequently, the court ruled that the Fair Work Commission did not have the authority to proceed with the dismissal application at its own initiative. The court concluded that the application was not validly lodged, and therefore, the dismissal could not be reviewed on its merits. The court dismissed Mr. Harnor's application for relief from unfair dismissal due to the procedural defect.

Nathan Harnor v Australian Urban Tree Services Pty Limited

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established