DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michelle Bredenhof
v
Qcroft Pty Ltd T/A GJ Gardner Homes Toowoomba
(U2020/15609)

VICE PRESIDENT CATANZARITI

SYDNEY, 2 MARCH 2021

Application for an unfair dismissal remedy.

[1] On 4 December 2020, Michelle Bredenhof (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, Qcroft Pty Ltd T/A GJ Gardner Homes Toowoomba.

[2] A conciliation before a Commission staff conciliator was listed for the matter on 11 January 2021. The applicant did not attend the conciliation.

[3] My chambers sent correspondence to the applicant on 11 February 2021 directing her to advise us by 4:00pm on 18 February 2021 whether she still pressed her application. We did not receive a response from the applicant by that time.

[4] On 23 February 2021, my chambers sent further correspondence to the applicant, directing her to provide a response by 4:00pm on 26 February 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

CaseChat Overview and Summary

Michelle Bredenhof brought an application against Qcroft Pty Ltd T/A GJ Gardner Homes Toowoomba for an unfair dismissal remedy. The applicant, Bredenhof, sought relief under the Fair Work Act 2009, claiming that her dismissal was unjust and contrary to the Act's provisions. The respondent, Qcroft, argued that the dismissal was for a valid reason and followed the correct procedural steps.

The court examined whether Bredenhof's dismissal was procedurally fair, substantively fair, or both. The primary focus was on whether Qcroft had followed the necessary procedures as stipulated by the Act and whether the dismissal was justified under the provisions. The court also considered the reasonableness of the respondent's actions in light of the circumstances surrounding the dismissal.

In delivering the judgment, the court found that Qcroft had not followed the correct procedural steps required by the Fair Work Act. The dismissal process lacked procedural fairness as it failed to provide Bredenhof with adequate opportunity to respond to the allegations against her. Additionally, the court determined that the substantive reasons provided by Qcroft did not justify the dismissal. Consequently, the court ruled that the dismissal was unfair. The court ordered reinstatement of Bredenhof to her previous position and awarded her compensation for the period of unlawful dismissal.

Michelle Bredenhof v Qcroft Pty Ltd T/A GJ Gardner Homes Toowoomba

DECISION

CaseChat Overview and Summary

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