Turner v Dubbo Allfence

[2016] FWC 2406

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Andrew Turner
v
Dubbo Allfence
(U2015/16619)
DEPUTY PRESIDENT GOOLEY	MELBOURNE, 15 APRIL 2016
Application for relief from unfair dismissal.

[1] On 8 December 2015, Mr Andrew Turner 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 sent correspondence on 16

December 2015 to Mr Turner. Mr Turner was allowed 14 days from the date of making the

application to complete a Form 2 - Application for Remedy from Unfair Dismissal and was

advised that failure to return a completed application would result in his application being

dismissed.

[3] On 23 December 2015, the Commission telephoned Mr Turner who advised he had

emailed the completed application to the Commission. The Commission staff member

advised Mr Turner it had not been received and requested he resend the application to the

Commission.

[4] On 5 January 2016, the Commission attempted to contact Mr Turner and a voicemail

message was left asking him to contact the Commission.

[5] On 24 February 2016, the Commission contacted Mr Turner who advised he had

emailed his application to the Commission several times. The Commission staff member

advised it had not been received and again requested Mr Turner resend his application to the

Commission.

[6] On 1 March 2016, the Commission again contacted Mr Turner who advised he had

emailed the application. The Commission staff member sent Mr Turner his personal email

address so that the application could be emailed to him directly.

[7] On 4 March 2016, the Commission telephoned Mr Turner and a message was left on

voicemail asking him to send his application.
[2016] FWC 2406

[8] On 9 March 2016, the Commission emailed Mr Turner requested a completed

application form. Mr Turner was advised that in the absence of any documents being

received from him by 30 March 2016, his application may be dismissed.

[9] Rule 9 of the Fair Work Commission Rules 2013 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

(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;

[2016] FWC 2406

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.”
[10] 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.”

[11] Having regard to the above, Mr Turner has failed to file a completed application and

did not pay the required fee.

[12] 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.”

[13] Having regard to the circumstances of this matter, I am satisfied that Mr Turner did

not complete the application and did not pay 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

Printed by authority of the Commonwealth Government Printer

[2016] FWC 2406

15 April 2016