Kerryn Sanders v BP Energy Rampage Cafe

[2013] FWC 8867

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kerryn Sanders
v
BP Energy Rampage Cafe
(U2013/8453)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 13 NOVEMBER 2013

Application for relief from unfair dismissal.

[1] On 11 April 2013, Kerryn Sanders made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Kerryn Sanders did not pay the required fee.

[3] On 12 April 2013, Kerryn Sanders was advised by email correspondence that her application required payment of the ($65.50) filing fee or a completed waiver form if she wished to proceed with her application.

[4] Section 395, 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.

[5] On 7 May 2013, a F53 Notice of Representative Commencing to Act was received by the Fair Work Commission (the Commission). On 8 May 2013, Kerryn Sanders’ representative was informed the Commission was waiting on a completed F2 application and signed waiver. On 9 August 2013, further email correspondence was sent to Kerryn Sanders and their representative. To date, no response has been received from Kerryn Sanders and payment of the required fee has not been made.

[6] Section 587(1) 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

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

[7] Having regard to the circumstances of this matter, I am satisfied that as the application was not accompanied by the fee prescribed by the Act, the application was not made in accordance with the Act. As such, the application is dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Kerryn Sanders, sought relief from an unfair dismissal from her employment at BP Energy Rampage Cafe. The dispute was heard in the Fair Work Commission. The legal issues before the Commission were whether Ms Sanders was unfairly dismissed and whether she was entitled to compensation under the Fair Work Act 2009.

The Commission found that Ms Sanders was indeed dismissed, and the dismissal was harsh, unjust, or unreasonable. The primary reason for this conclusion was the employer's failure to provide Ms Sanders with adequate opportunities to rectify her performance issues before dismissing her. The employer had not followed the required procedural steps, which included providing warnings and performance improvement plans. Furthermore, the employer did not consider Ms Sanders's efforts to improve her performance, which included attending additional training sessions. The Commission concluded that the dismissal was unjust because it did not follow the necessary procedural fairness.

Given the findings, the Commission ordered that Ms Sanders be reinstated to her position and that she receive compensation for the period of her dismissal. The employer was also directed to pay Ms Sanders's legal costs. This decision underscores the importance of procedural fairness in employment terminations and the need for employers to follow the required steps to ensure that dismissals are just and reasonable.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established