Anne-Marie Thompson-Kenny v Rise [2021] FWC 2267

1 Fair Work Act 2009 s.394—Unfair dismissal Anne-Marie Thompson-Kenny v Rise (U2021/2800) COMMISSIONER BISSETT MELBOURNE, 27 APRIL 2021 Application for an unfair dismissal remedy. [1] On 6 April 2021, Ms Anne-Marie Thompson-Kenny (Applicant) made an application by telephone to the Fair Work Commission (the Commission) for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). [2] On 6 April 2021, the Commission sent correspondence to Ms Thompson-Kenny’s nominated postal address providing 14 days from the date of making the telephone application to complete a Form F2 - Unfair Dismissal Application (Application) in addition to paying the filing fee or completing a waiver form. A waiver form was provided with this correspondence. Ms Thompson-Kenny was advised that failure to return a completed application and provide payment or a waiver form may result in her application being dismissed. [3] On 19 April 2021, the Commission attempted to contact the Applicant on her nominated telephone number as no completed application had been filed. Ms Thompson- Kenny did not answer the call. The Commission then received an automated message stating that the call could not completed at that time and to check the number and try again later. The Commission was unable to leave a voice message. [4] A final attempt was made to the Applicant on 27 April 2021 to seek payment and the completed application form. The call was unsuccessful, where again an automated message was received stating the call could not be completed and a voice message could not be left by the Commission. [5] Rule 9 of the Fair Work Commission Rules 2013 (Rules) governs applications made by telephone in the Commission. Rule 9 states as follows: 9 Telephone applications (1) This rule applies to a person wanting to: .... (b) make an unfair dismissal application to the Commission. [2021] FWC 2267 DECISION -- 1 of 3 -- [2021] FWC 2267 2 (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 www.fwc.gov.au. (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. -- 2 of 3 -- [2021] FWC 2267 3 [6] Section 395 of the FW Act, which deals with application fees, states 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. [7] Having regard to the above, Ms Thompson-Kenny has failed to file a completed application and did not pay the required fee or file a complete waiver form. [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] Having regard to the circumstances of this matter, I am satisfied that the application was not made in accordance with the FW Act as Ms Thompson-Kenny has not completed a Form F2, has not paid the required fee or filed a completed waiver form. For this reason, the application is dismissed under s.587(1)(a) of the FW Act. An Order1 giving effect to this decision will be issued shortly. COMMISSIONER Printed by authority of the Commonwealth Government Printer <PR728923> Endnote: 1 PR728924 -- 3 of 3 --