Sarah Barrenger v Aldi Supermarkets

[2014] FWC 970

[2014] FWC 970

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sarah Barrenger
v
ALDI Supermarkets
(U2013/15458)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 10 FEBRUARY 2014

Application for relief from unfair dismissal.

[1] On 30 October 2013, Ms Sarah Barrenger 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 31 October 2013 to Ms Barrenger.

[3] Ms Barrenger was allowed 14 days from the date of making the application to complete a Form 2 - Application for Remedy from Unfair Dismissal (the application) in addition to paying the filing fee or completing waiver a form. Ms Barrenger was advised that failure to return a completed application and payment/waiver form would result in his application being dismissed.

[4] On 13 November 2013, the Commission attempted to contact Ms Barrenger in relation to the correspondence dated 31 October 2013 as no completed application or waiver had been filed. Ms Barrenger was unable to be contacted and a message was left on her phone requesting that she call the Registry. Further attempts to contact her by telephone on 20 November 2013 with regards to lodgement of her completed application were also unanswered. A further message was left advising that the matter may be dismissed if not made complete or discontinued and that an order to this effect may be issued and made publically available via the Commission’s web site.

[5] Rule 14 of the Fair Work Rules 2010 (the Rules) governs applications made by telephone in the Commission.

14 Applications may be made by telephone

Despite rule 6, an application for an unfair dismissal remedy may be made by telephone at a telephone number approved for that purpose, provided that:

(a) the applicant pays the application fee prescribed in the Regulations by credit card, or applies for a waiver of the fee at the time the telephone application is made; and

(b) the applicant signs and returns to FWA a copy of the written application generated by FWA (amended as necessary to correct any errors) together with a completed application for waiver if a waiver of the fee has been sought.

Note 1 The telephone number approved for making an application for an unfair dismissal remedy by telephone can be found on FWA’s website at:

Note 2 The written application generated by FWA, and any application for waiver of the fee, will be sent by FWA to the person who makes a telephone application under this rule.

Note 3 A telephone application will not be accepted unless the requirement in (a) is complied with. An application made under this rule will not be further processed by FWA until the requirement in (b) has been complied with.

[6] 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.

[7] Having regard to the above, Ms Barrenger has failed to file a completed application and did not pay the required fee.

[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] Having regard to the circumstances of this matter, I am satisfied that the application was not accompanied by the fee as prescribed by the Act and 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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