Shane Rees v Brearley Plumbing Pty Ltd

[2019] FWC 3887

[2019] FWC 3887

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shane Rees
v
Brearley Plumbing Pty Ltd
(U2019/2940)

DEPUTY PRESIDENT DEAN SYDNEY, 5 JUNE 2019

Application for an unfair dismissal remedy.

[1] On 15 March 2019, Mr Shane Rees made an application by telephone for a remedy for unfair dismissal under to s.394 of the Fair Work Act 2009.

[2] On 18 March 2019 correspondence was sent to Mr Rees advising that the application was incomplete and the required filing fee was not paid. Mr Rees was advised that a completed application must be filed within 14 days from the day the telephone application was made.

[3] On 18 April 2019, the Commission contacted Mr Rees by telephone and advised him that he must provide the completed Form F2 or the application may be dismissed.

[4] A final attempt was made on 14 May 2019 to contact Mr Rees and he was advised that the written application and payment were still outstanding and the application may be dismissed if a completed form was not filed.

[5] To date, no completed application or filing fee has been received.

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

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.

(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] 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 made in accordance with the Act as Mr Rees failed to file a completed application and did not pay the required fee. For this reason, the application is dismissed under s.587(1)(a) of the Act. An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

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