Travis Russell v Patrick's Stevedoring T/A Asciano

[2013] FWC 9141

[2013] FWC 9141

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Travis Russell
v
Patrick’s Stevedoring T/A Asciano
(U2013/14013)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 20 NOVEMBER 2013

Application for relief from unfair dismissal dismissed.

[1] On 27 September 2013, Mr Travis Russell made an application by telephone for a remedy for unfair dismissal under to s.394 of the Fair Work Act 2009.

[2] After the application was made, the Fair Work Commission (the Commission) sent correspondence to Mr Russell on 30 September 2013.

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

[4] On 21 October 2013, the Commission contacted Mr Russell by telephone reminding him to file his outstanding application and to make payment or file a waiver form otherwise his application may be dismissed.

[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, Mr Russell 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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