Richard Albert v Krueger Transport Equipment Pty Ltd

[2016] FWC 1508

[2016] FWC 1508

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Richard Albert
v
Krueger Transport Equipment Pty Ltd
(U2016/4202)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 9 MARCH 2016

Application for relief from unfair dismissal.

[1] On 2 February 2016, Mr Richard Albert 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 on the same day to Mr Albert

[3] Mr Albert was allowed 14 days from the date of making the application to complete a Form 2 - Application for Remedy from Unfair. Mr Albert was advised that failure to return a completed application would result in his application being dismissed.

[4] On 11 February 2016, the Commission attempted to contact Mr Albert by telephone as no completed application had been filed. He was advised that his application and payment were still outstanding. He said that he would complete the paperwork in the next few days.

[5] On 22 and 24 February 2016, attempts were made by telephone and email to enquire about whether Mr Albert wanted to continue with his application. No response was provided on either date.

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

“9 Telephone applications

…

(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.

(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] Having regard to the above, I also note that Mr Albert has provided payment of his application but has failed to complete his application. It is clear that unless Mr Albert provided a completed application form within 14 days, his application is not taken to have been made when the telephone application was made.

[8] 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.”

[9] The Commission has made numerous attempts to obtain a completed application from Mr Albert with no success. For this reason, I am satisfied that the application has not been made in accordance with the Act. I have therefore decided to dismiss this application 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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