Shilpi Shobha v NextDC

[2023] FWC 2220

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Shilpi Shobha
v

NextDC

(U2023/7102)

COMMISSIONER BISSETT

MELBOURNE, 13 SEPTEMBER 2023

Application for relief from unfair dismissal – incomplete application – dismissal under s.587 at the Commission’s initiative

On 2 August 2023, Shilpi Shobha (the Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

The application form filed by the Applicant was incomplete in that they did not attach a completed fee waiver form (Form F80).

On 7 August 2023, the Commission attempted to contact the Applicant on their nominated telephone number to request a completed fee waiver form. The Applicant did not answer the call and an automated message explained that the mobile phone number was not turned on. A voicemail message could not be left.

Later that day, the Commission emailed correspondence to the Applicant’s nominated email address requesting a completed fee waiver form. This correspondence also advised that if a completed waiver form was not provided within 14 days, the application may be dismissed. An SMS notification was also sent to the Applicant’s nominated telephone number, notifying the Applicant that there was an issue with their case, and requested that they contact the Commission.

As the required information was not received, on 21 August 2023, the Commission attempted to contact the Applicant on their nominated telephone number. An automated message explained that the mobile phone was not turned on. There was no facility for leaving a voicemail message.

To date, no further correspondence or documentation has been received from the Applicant.

Section 587(1) of the FW 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 prospect of success.

In these circumstances, I have determined that the application was not made in accordance with the FW Act. As such, the application is dismissed under s.587(1)(a) of the FW Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application for unfair dismissal made by Shilpi Shobha against NextDC. The Applicant's application was dismissed as incomplete because she failed to attach the necessary fee waiver form, despite multiple attempts by the Commission to contact her to request the missing documentation. The Commission had contacted the Applicant multiple times via phone and email, with no response from the Applicant. Consequently, the Commission dismissed the application under section 587 of the Fair Work Act, as it was not made in accordance with the Act.

The central issue before the Commission was whether the Applicant's application for unfair dismissal was compliant with the procedural requirements of the Fair Work Act. Specifically, the Commission had to determine whether the application was dismissed due to non-compliance with the Act or if there were other grounds for dismissal, such as the application being frivolous or vexatious, or having no reasonable prospect of success. Given the Applicant's failure to provide the necessary fee waiver form despite multiple attempts by the Commission to obtain it, the Commission concluded that the application was not made in accordance with the Act.

In dismissing the application, the Commission noted that the Fair Work Act requires applicants to attach a completed fee waiver form when applicable. The Applicant did not provide this form, despite being contacted multiple times by the Commission to request it. As a result, the Commission found that the application did not comply with the requirements of the Act and was dismissed under section 587(1)(a). The Commission did not consider it necessary to explore other potential grounds for dismissal, as the non-compliance with the Act was sufficient to justify dismissal.

The Fair Work Commission dismissed the application for unfair dismissal made by Shilpi Shobha against NextDC. The dismissal was pursuant to section 587(1)(a) of the Fair Work Act due to the application not being made in accordance with the Act, specifically for the failure to attach a completed fee waiver form. No further action will be taken on this application unless and until a compliant application is submitted.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established