Sarah Stephens v 727Dentist.com

[2019] FWC 7566

[2019] FWC 7566

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sarah Stephens
v
727Dentist.com
(U2019/11279)

DEPUTY PRESIDENT DEAN SYDNEY, 4 NOVEMBER 2019

Application for an unfair dismissal remedy – fee not paid – application dismissed.

[1] On 8 October 2019, Ms Sarah Stephens made an application by telephone for a remedy for unfair dismissal under to s.394 of the Fair Work Act 2009.

[2] On 9 October 2019, the Fair Work Commission sent correspondence to Ms Stephens advising that her application would not be further processed until she paid the application fee, and a signed and completed application form was returned to the Commission.

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

[4] On 21 October 2019, the Commission unsuccessfully attempted to contact Ms Stephens by telephone as no completed application had been filed.

[5] On 30 October 2019, the Commission was able to contact Ms Stephens and advised her that her application and payment were still outstanding. Ms Stephens was also advised that if she no longer wished to pursue her application, she should file a notice of discontinuance.

[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 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] To date, Ms Stephens has failed to file a completed application and has not paid 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 the application was not made in accordance with the Act, in that a completed application has not been made and it was not accompanied by the fee as prescribed by 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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