Wendy Thompson v Tooleybuc Club Motor Inn

[2021] FWC 52

[2021] FWC 52

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Wendy Thompson
v
Tooleybuc Club Motor Inn
(U2020/16026)

COMMISSIONER BISSETT MELBOURNE, 7 JANUARY 2021

Application for an unfair dismissal remedy.

[1] On 15 December 2020 Ms Wendy Thompson 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).

[2] The application form filed by Ms Thompson was incomplete in that she did not complete the section on why she thought the dismissal was unfair, pay the required fee or provide a completed application for waiver of the filing fee.

[3] On 16 December 2020 the Commission attempted to contact Ms Thompson on her nominated telephone number to request the missing details. Ms Thompson did not answer the call. There was no voicemail option available for the Commission to leave a message.

[4] Later that day the Commission emailed correspondence to Ms Thompson’s nominated email address requesting she provide further details as the unfair dismissal application was incomplete, the required fee had not been paid and a fee waiver form has not been received. That correspondence also advised that if the completed application form and payment were not provided within 14 days, the application may be dismissed. An SMS notification was also sent to Ms Thompson’s nominated telephone number, requesting that she contact the Commission.

[5] On 17 December 2020 Ms Thompson telephoned the Commission’s helpline to query the SMS she received. The Commission informed Ms Thompson that both the unfair dismissal and waiver applications were incomplete and asked Ms Thompson to complete and return the application forms. Ms Thompson explained she would have to get her son to assist her as she submitted the application form using his laptop. Ms Thompson asked questions about the unfair dismissal process. The Commission explained the unfair dismissal process but emphasized that her matter cannot progress further until she sends in the completed application form, made payment or submitted a fee waiver form.

[6] As the required information was not received, on 4 January 2021 the Commission attempted to contact Ms Thompson on her nominated telephone number. Ms Thompson did not answer the call. There was no voicemail option available for the Commission to leave a message.

[7] Section 395 of the FW Act, which deals with application fees, provides as follows:

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 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.

[9] To date, no response has been received and Ms Thompson has not provided the necessary details as requested.

[10] 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. An Order 1 to this effect will be issued shortly.

COMMISSIONER

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