Kristy Vanderley v Viva Energy Australia Summary

[2025] FWC 2709

FAIR WORK COMMISSION

DECISION AND ORDER

Fair Work Act 2009

s.394—Unfair dismissal

Kristy Vanderley
v

Viva Energy Australia

(U2025/5274)

DEPUTY PRESIDENT EASTON

SYDNEY, 11 SEPTEMBER 2025

Application for an unfair dismissal remedy – application fee not paid or waived – application not made in accordance with the Act - application dismissed.

On 2 May 2025, Ms Kristy Vanderley made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth).

Ms Vanderley had begun an unfair dismissal application by telephone on 2 May 2025. On the same day Ms Vanderley was sent a letter, a partially completed F2 application and was asked to complete the rest of the application form, and to sign and return it to the Commission.

On 14 May 2025 Ms Vanderley tried to send her application by email and fileshare software. Commission staff replied and advised her that they could not access the files due to security restrictions.

The application filed by Ms Vanderley was incomplete because Ms Vanderley did not return the completed F2 application in the acceptable format and did not pay the application fee or provide a completed application for a waiver of the fee.

Commission staff attempted to contact Ms Vanderley on 2 May, 19 May and 26 June 2025 by telephone, SMS and email.

Section 587 confers a discretion on the Commission to dismiss Ms Vanderley’s application if it has not been made in accordance with the Act. Ms Vanderley has had ample opportunity to rectify the deficiencies in her application and has had ample opportunity to show why her application should not be dismissed under s.587 (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [15]-[16] and the cases cited therein).

I make the following order:

A.The application under s.394 of the Fair Work Act 2009 (Cth) made by Ms Kristy Vanderley on 2 May 2025 is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kristy Vanderley lodged an unfair dismissal application with the Fair Work Commission under section 394 of the Fair Work Act 2009. The respondent, Viva Energy Australia, contested the application, asserting that it was not made in accordance with the requirements of the Act. The application was initially submitted over the phone but was incomplete as it lacked the necessary F2 application form and the application fee or a waiver of the fee. Despite multiple attempts by the Commission to contact Ms Vanderley and provide guidance on how to properly submit the application, the deficiencies were not rectified. The Deputy President was required to determine whether the application complied with the Act and whether the application should be dismissed under section 587 of the Fair Work Act 2009.

The central issue before the Deputy President was whether the application was appropriately made according to the Act, specifically whether the application fee was paid or a waiver provided, and whether the application was submitted in the correct format. Additionally, the court had to consider whether there were valid grounds to dismiss the application under section 587 of the Act due to its non-compliance. The Deputy President referenced previous cases, such as Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302, to underscore the importance of adherence to procedural requirements and the Commission's discretion to dismiss non-compliant applications.

After reviewing the circumstances, the Deputy President concluded that Ms Vanderley's application was not made in accordance with the Act. The court noted that Ms Vanderley had ample opportunity to correct the deficiencies in her application but failed to do so. Consequently, the application was dismissed under section 587 of the Fair Work Act 2009. The Deputy President issued an order dismissing the application made by Ms Kristy Vanderley on 2 May 2025.

Kristy Vanderley v Viva Energy Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established