Sarah Vanderhoek v Southern Riverina Dairy Group Ltd

[2020] FWC 2089

[2020] FWC 2089

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sarah Vanderhoek
v
Southern Riverina Dairy Group Ltd
(U2020/3179)

COMMISSIONER BISSETT MELBOURNE, 24 APRIL 2020

Application for an unfair dismissal remedy – dismissal under s.587 at the Commission’s initiative.

[1] On 17 March 2020, Ms Sarah Vanderhoek made an application to the Fair Work Commission for remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] The application made by Ms Vanderhoek was incomplete in that it did not include payment of the required fee or a completed fee waiver form in accordance with s.395 of the FW Act.

[3] On 18 March 2020, the Commission twice attempted to telephoned Ms Vanderhoek on her nominated telephone number to discuss payment. Ms Vanderhoek did not answer the phone and there was no capacity to leave a voicemail message.

[4] Later that same day the Commission sent email correspondence to Ms Vanderhoek’s nominated email address attaching a fee waiver form and advising that her application required payment of the filing fee or a completed waiver form if he wished to proceed with her application. The correspondence also warned that if Ms Vanderhoek did not pay the application fee or make an application to have the fee waived within 14 days her application may be dismissed. Ms Vanderhoek did not respond.

[5] On 1 April 2020, the Commission telephoned Ms Vanderhoek to discuss payment. Ms Vanderhoek answered the call and advised that she wished to proceed with her application and that she would complete a fee waiver form and send it to the Commission via email. Ms Vanderhoek asked for the Commission’s email address which was then provided to her.

[6] To date, Ms Vanderhoek has not paid the required fee or filed a completed fee waiver form.

[7] Section 395 of the FW Act, which deals with application fees, states that:

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.

[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 prospects of success.

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR718465>

 1   PR718466.