Sonia McNally v Ecomed Trading

[2019] FWC 8556

[2019] FWC 8556

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sonia McNally
v
Ecomed Trading
(U2019/12816)

DEPUTY PRESIDENT DEAN SYDNEY, 18 DECEMBER 2019

Application for an unfair dismissal remedy.

[1] On 18 November 2019, Ms Sonia McNally made an application by telephone for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] On 19 November 2019 correspondence was sent to Ms McNally requiring her to complete a Form F2 - Application for Remedy from Unfair Dismissal (the application). Ms McNally was advised that failure to return a completed application within 14 days would result in her application being dismissed. Ms McNally paid the prescribed fee upon lodging the application via telephone.

[3] On 21 November and 5 December 2019, the Commission attempted to contact Ms McNally by telephone as no completed application had been filed despite the filing fee having been paid, however these attempts were unsuccessful.

[4] To date the Commission has not received a completed application from Ms McNally.

[5] 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.

[6] Having regard to the above, Ms McNally has failed to lodge a completed and signed written application.

[7] 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.

[8] Having regard to the circumstances of this matter, I am satisfied that the application was not completed 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

Printed by authority of the Commonwealth Government Printer

<PR715402>