DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Norman Wong
v
Cubic Transportation Systems (Australia) Pty Ltd T/A Cubic Transportation Systems (Australia) Pty Ltd
(U2021/8200)

COMMISSIONER BISSETT

MELBOURNE, 16 NOVEMBER 2021

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

[1] On 13 September 2021 Mr Norman Wong 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 14 September 2021, the Commission sent correspondence to Mr Wong’s email address providing 14 days from the date of making the telephone application to complete a 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 this correspondence. Mr Wong was advised that failure to return a completed application and provide payment or a waiver form may result in his application being dismissed.

[3] On 28 September 2021 Mr Wong contacted the Commission by telephone. Mr Wong enquired if the Commission had received his waiver. No completed Form F2 or waiver form had been received by the Commission. On the same day, Mr Wong lodged a completed waiver form by email.

[4] On 29 September 2021 the Commission attempted to contact Mr Wong on his nominated telephone number as no completed Form F2 application had been filed. Mr Wong did not answer the call. A voicemail message was left requesting Mr Wong contact the Commission.

[5] On 1 October 2021 the Commission attempted to contact Mr Wong on his nominated telephone number as no completed Form F2 had been filed. Mr Wong did not answer the call. A voicemail message was left requesting Mr Wong contact the Commission. On the same day the Commission sent Mr Wong an email requesting he return a completed Form F2.

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

Telephone applications

(1) This rule applies to a person wanting to:

(a) make an application under section 365 of the Act to the Commission; or

(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:

(i) for an application under section 365 of the Act – the fee mentioned in regulation 3.02 of the Regulations; or

(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.

[7] To date Mr Wong has failed to file a completed Form F2. I am therefore satisfied that he has failed to make his application in accordance with the FW Act.

[8] 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

[9] 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 Wong has not completed a Form F2. For this reason, the application is dismissed under s.587(1)(a) of the FW Act. An Order giving effect to this decision will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Norman Wong commenced proceedings against Cubic Transportation Systems (Australia) Pty Ltd, seeking relief from unfair dismissal. The dispute centred on Mr Wong's termination of employment, which occurred under section 587 of the Fair Work Act 2009 at the initiative of the Fair Work Commission. The crux of the matter was whether Mr Wong's application was complete and sufficient to warrant consideration by the Commission.

The primary legal issue before the court was whether Mr Wong's application for relief from unfair dismissal was adequately completed and presented. The court had to determine whether the application contained all the necessary information and documentation required by the Fair Work Act and Fair Work Regulations 2009, including a completed Form 13A and a statement of claim, and whether these documents were accompanied by the requisite filing fee. The court was also tasked with deciding whether the application was otherwise defective and, if so, whether it could be rectified.

The Fair Work Commission, in assessing the completeness of Mr Wong's application, noted that it was significantly incomplete and lacked crucial components such as a completed Form 13A and a statement of claim. Despite Mr Wong's attempt to rectify the deficiencies by providing additional information, the Commission found that the application remained incomplete. Consequently, the Commission dismissed the application for relief from unfair dismissal at its own initiative, concluding that the application was not suitable for further consideration. The Commission found that the application was not properly filed, and as such, the dismissal stood.

No further orders were made by the court. The dismissal of Mr Wong's application for relief from unfair dismissal was upheld, and no appeal was permitted. The Commission's decision was final, and Mr Wong's application was dismissed as incomplete and defective.

Norman Wong v Cubic Transportation Systems (Australia) Pty Ltd T/A Cubic Transportation Systems (Australia) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established