s.739 - Dispute resolution

Application for an unfair dismissal remedy - incomplete application - dismissal under s.587 at the Commission's initiative

[1] On 6 September 2022, Mrs Evelyn Olivia Hart-Reid (the Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal under s.739 of the Fair Work Act 2009 (the Act) to deal with a dispute in accordance with a dispute settlement procedure.

[2] The Applicant's F10 application form was incomplete in that the Applicant did not provide the Respondent's service details and answer questions 1.2 and 1.3 which relate to the applicable industrial instruments and relevant dispute settlement procedure.

[3] Later that day, an attempt was made to contact the Applicant on her nominated telephone number to discuss the missing information and incomplete application. A voicemail message was left requesting the Applicant return the Commission's call.

[4] Additionally, the Commission sent a letter to the Applicant via email advising that the Commission tried to call her regarding her incomplete application and that she will need to amend the application before the Commission can process her case. The letter advised the Applicant must do this by 11 September 2022 or her application may be dismissed. It then provided details of the relevant questions which the Applicant would need to answer to complete the application.

[5] On the same day, the Applicant forwarded the Commission an email chain with her former employer regarding the dispute, but she did not address the Commission's requests to complete her application.

[6] A final attempt to contact the Applicant was made by the Commission on 8 September 2022 to discuss her incomplete application. The call was not answered, and a voicemail message was left advising her application was incomplete and the Applicant should return this phone call as soon as possible to discuss.

[7] On 15 September 2022, the Applicant called my Chambers to ask what she needed to do to complete the application. My Chambers advised that correspondence had been sent to her advising which questions were outstanding and what details needed to be provided.

[8] Since this telephone call, the Applicant has not contacted the Commission nor provided the relevant details to complete her application. Consequently, and as foreshadowed in the correspondence to the Applicant on 6 September 2022, I have decided to dismiss her application pursuant to s.587 of the Act.

[9] Section 587(1) of the Act provides:

• (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

(c) the application has no reasonable prospect of success.

• [10] In deciding to dismiss the application I have had regard to the views of the Full Bench of the Commission in Peter Viavattene v Health Care Australia[1] where it was noted that:

"[39] ...There is no legislative or common law requirement pursuant to which the Commission must persevere with an application in circumstances where the applicant's conduct clearly demonstrates an unwillingness to participate in proceedings commenced at his or her initiative..."

• [11] I have also had regard to the observation in Nick Williams v Sydney Gay & Lesbian Business Association t/a Sydney Gay & Lesbian Business Association that the power to dismiss a substantive application should not be exercised hastily.[2] In circumstances where the Commission has written to the Applicant on multiple occasions and given her every opportunity

to complete her application, and the Applicant has failed to do so, I am satisfied that dismissing the application at this time could not be described as hasty.

[12] Having regard to the circumstances of this matter, I am satisfied that as the application was incomplete and therefore was not made in accordance with the Act. As such, the application is dismissed pursuant to s.587(1)(a) of the Act.

[13] An order to this effect will be issued with this decision.

[1] [2013] FWCFB 2532 at [39].

[2] [2019] FWC 4399 at [12].

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