Nathan Young v KwikUP Sales Pty Ltd
[2023] FWC 76
•12 JANUARY 2023
| [2023] FWC 76 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Nathan Young
v
KwikUP Sales Pty Ltd
(U2022/11724)
| COMMISSIONER BISSETT | MELBOURNE, 12 JANUARY 2023 |
Application for an unfair dismissal remedy – incomplete telephone application – dismissal under s587 at the Commission’s initiative.
On 13 December 2022 Mr Nathan Young 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).
On the same day the Commission sent correspondence to Mr Young’s nominated email and postal address advising that he had 14 days from the date of making the telephone application to complete the attached Form F2 - Unfair Dismissal Application (Form F2) in addition to paying the filing fee or completing a waiver form. A waiver form was provided with the correspondence. Mr Young was advised that a failure to return a completed application and provide payment or a completed waiver form may result in their application being dismissed.
On 29 December 2022 the Commission attempted to contact Mr Young on his nominated telephone number as no completed Form F2 had been filed. The Commission advised Mr Young that a completed application and payment/waiver were still outstanding. The Applicant was advised that if they no longer wished to pursue their application, they should file a notice of discontinuance. Mr Young advised he had received the letter from the Commission and wished to proceed with his application. The Commission informed Mr Young that a failure to return a completed application and provide payment or a completed waiver form may result in his application being dismissed. Mr Young advised he would send a completed application on 30 December 2022.
As of the current date the Commission has not received a completed Form F2 from Mr Young.
Rule 9 of the Fair Work Commission Rules 2013 (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.
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.
Having regard to the above, Mr Young has failed to file a completed application.
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.
I am satisfied that the application has not been made in accordance with the FW Act as Mr Young has not completed a Form F2. For this reason I order that the application is dismissed under s.587(1)(a) of the FW Act.
COMMISSIONER
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