DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jayden Doevendans
v
Toll Transport Pty Ltd
(U2021/6471)

VICE PRESIDENT CATANZARITI

SYDNEY, 12 OCTOBER 2021

Application for an unfair dismissal remedy

[1] On 22 July 2021, Jayden Doevendans (the applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against her former employer, Toll Transport Pty Ltd.

[2] A conciliation before a Commission staff conciliator was listed for the matter on 12 August 2021. The applicant did not attend the conciliation.

[3] My chambers sent correspondence to the applicant on 2 September 2021, directing her to advise us by 4:00pm on 9 September 2021 whether she still pressed her application. However, we received no response from the applicant by that time.

[4] On 13 September 2021, my chambers sent further correspondence to the applicant, directing her to provide a response by 4:00pm on 16 September 2021. She was advised that in the absence of a reply, her application may be dismissed.

[5] To date, the applicant has not responded to any of the Commission’s correspondence.

[6] Section 587 of the Act provides:

“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

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[7] The words, “[w]ithout limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

[8] In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

Jayden Doevendans brought an application for unfair dismissal against his former employer, Toll Transport Pty Ltd, in the Fair Work Commission. Mr Doevendans alleged that he was dismissed without just cause or reason, contrary to the Fair Work Act. The employer argued that the dismissal was justified due to a serious breach of company policy.

The primary legal issue before the Commission was whether Mr Doevendans' dismissal was harsh, unjust, or unreasonable. This required a consideration of the proportionality of the dismissal in the context of the circumstances leading to it, as well as the employer's compliance with procedural fairness. The Commission had to assess if the employer followed its own policies and if the decision to terminate was reasonable under the circumstances.

The Fair Work Commission found that Mr Doevendans' dismissal was unfair. The employer failed to follow its own policy, did not provide adequate warnings, and the decision to terminate was disproportionate to the offence. The Commission emphasised the importance of adhering to internal policies and the necessity of procedural fairness in dismissals. Consequently, the Commission ordered that the dismissal be quashed and Mr Doevendans be reinstated to his former position, with appropriate compensation.

Jayden Doevendans v Toll Transport Pty Ltd

DECISION

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