DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rachelle Young
v
Woolworths Supermarket Mooroopna
(U2016/13466)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 10 JANUARY 2017

Application for relief from unfair dismissal.

[1] On 9 November 2016, Ms Rachelle Young made an application by telephone for a remedy for unfair dismissal under to s.394 of the Fair Work Act 2009 (the Act).

[2] After the application was made, the Fair Work Commission (the Commission) sent correspondence including a waiver application form to Ms Young. This correspondence, dated 9 November 2016, advised Ms Young that she had 14 days from the date of making the application to complete a Form F2 – Unfair Dismissal Application (the application) in addition to paying the filing fee or completing a waiver form. Ms Young was advised that a failure to return a completed application and payment/waiver form may result in her application being dismissed.

[3] On 29 November 2016, the Commission contacted Ms Young by telephone to follow up on the correspondence of 9 November 2016. The Commission subsequently sent another copy of the telephone application and waiver form to Ms Young by express post because she had advised that she had not received the Commission’s letter dated 9 November 2016. There was no response to either pieces of correspondence.

[4] Further attempts to contact Ms Young were made on 14 and 20 December 2016, when a voicemail was left asking that she contact the Commission.

[5] To date, no response from Ms Young has been received to any of the contact made by the Commission.

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

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

(3) 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.

[7] Section 395 of the Act, which deals with application fees, provides:

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.

[8] Having regard to the above, Ms Young has failed to file a completed application and did not pay the required fee.
[9] Section 587(1) of the 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 prospects of success.

[10] Having regard to the circumstances of this matter, I am satisfied that Ms Young has not completed and signed the written application and that the application was not accompanied by the fee as prescribed by the Act. The application is therefore not made in accordance with the Act. For this reason, the application is dismissed under s.587(1)(a) of the Act. An Order giving effect to this decision will be issued accordingly.

DEPUTY PRESIDENT
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Rachelle Young v Woolworths Supermarket Mooroopna

[2017] FWC 166

10 JANUARY 2017

DECISION