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

[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

[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

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1 PR718466.

CaseChat Overview and Summary

In the matter of Sarah Vanderhoek v Southern Riverina Dairy Group Ltd, the applicant, Ms Vanderhoek, sought a remedy for an unfair dismissal. The dismissal occurred under section 587 of the Fair Work Act 2009, initiated by the Fair Work Commission. The case arose out of Ms Vanderhoek's employment with the Southern Riverina Dairy Group Ltd, a dairy farming company. The applicant alleged that she was dismissed without just cause or reason, contrary to the provisions of the Fair Work Act.

The primary legal issue before the court was whether the dismissal of Ms Vanderhoek was indeed unfair within the meaning of the Fair Work Act. The court needed to assess the procedural fairness of the dismissal, the substantive fairness of the decision to terminate, and whether there were any mitigating factors that could justify the termination. Additionally, the court had to consider the evidence presented by both parties, including the reasons for the dismissal and the circumstances surrounding it.

The court, after considering the evidence and submissions from both parties, found that the dismissal of Ms Vanderhoek was procedurally fair, as proper procedures were followed by the employer. However, the court determined that the dismissal was substantively unfair because the decision to terminate was not a reasonable one in the circumstances. The court was particularly influenced by the lack of prior warnings or disciplinary actions against Ms Vanderhoek, which made the termination appear disproportionate. Consequently, the court ruled in favour of Ms Vanderhoek, granting her the remedy of unfair dismissal.

The final orders of the court included a reinstatement of Ms Vanderhoek to her previous position with the Southern Riverina Dairy Group Ltd, along with the entitlement to receive all wages and entitlements lost from the date of dismissal until the date of reinstatement. Additionally, the court ordered the respondent to pay Ms Vanderhoek compensation for the distress and inconvenience caused by the unfair dismissal.

Sarah Vanderhoek v Southern Riverina Dairy Group Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established