Adrian Praljak v Services Australia - [2022] FWC 442

[2022] FWC 442

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Adrian Praljak

Services Australia

(C2021/7902)

DEPUTY PRESIDENT LAKE

BRISBANE, 28 FEBRUARY 2022

Application to deal with a general protections dispute involving dismissal – jurisdictional objection – whether Applicant was dismissed – jurisdictional objection upheld – application dismissed

Adrian Praljak (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act) to deal with a general protections dispute in relation to the termination of his employment by Services Australia (the Respondent).

Directions were set for the filing of material and the matter was dealt with by way of hearing on 15 February 2022, which took place using Microsoft Teams.

The Respondent sought to be represented at the hearing, which was not opposed by the Applicant. Still, I was required to consider whether to granting permission pursuant to s.596 of the Act.[1] The first pre-requisite: the presence of one of the criteria under s.596(2), does not immediately invoke the right to representation but rather “involves an evaluative judgment akin to the exercise of discretion.”[2] Once that first step is satisfied, the second step “involves consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.”[3] Given the complexity of the matter and in the interests of dealing with it as effectively and efficiently as possible, I am satisfied that it was appropriate to grant the Respondent permission to be represented. Accordingly, Peter McNulty from Ashurst represented the Respondent at the hearing.

The Applicant appeared and gave evidence on his own behalf. The Respondent called Stephanie Tamm, Assistant Director in the Conduct and Reviews Team, to give evidence on its behalf.

Chronology

The Applicant commenced employment with the Respondent on 20 September 2021. As part of his onboarding documentation, the Applicant was asked to disclose any relevant medical or criminal history.

When the Applicant first got the job offer, he was very excited because working for the Commonwealth Government was his dream job. He wanted to make sure he did everything correctly, so he drove to his disability employment officer, Deborah Foley, to help him scan everything. He says he discussed with her what to write down about the medical and legal matters. He says she told him that he did not need to disclose the medical information because it was not relevant to his job. In respect of the criminal history, the Applicant said he did not need to disclose it because he believes he was wrongfully convicted and is currently trying to get the conviction quashed. Further, he says that at his sentence, the Judge told him he did not have to disclose it when applying for jobs. It is worth noting, however, that there was no evidence to support this assertion other than the Applicant’s testimony. On that basis, he says that Ms Foley agreed that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 442
Decision Date

CaseChat Overview and Summary

Adrian Praljak lodged an application with the Fair Work Commission (FWC) seeking to address a general protections dispute involving the termination of his employment by Services Australia. The primary legal issue was whether Mr Praljak had been dismissed within the meaning of s.386 of the Fair Work Act 2009. The case hinged on whether Mr Praljak's resignation was voluntary or if he was forced to resign due to the employer's conduct, which would constitute a dismissal. The Commission had to examine the circumstances surrounding the resignation and determine if the employer's actions amounted to conduct that left Mr Praljak with no effective or real choice but to resign.

In reaching its decision, the Commission considered the submissions and evidence from both parties. The Commission found that while Mr Praljak had resigned, there was insufficient evidence to support his claims that he was subjected to poor treatment, gaslighting, harassment, and micromanagement by the employer prior to his resignation. The Commission was particularly persuaded by the employer's reasonable management actions following serious allegations made about Mr Praljak's potential breaches of the Code of Conduct. The employer's decision to investigate the allegations and consider a suspension on full pay was deemed appropriate and necessary to mitigate any risk to the public. Furthermore, the employer's refusal to accept Mr Praljak's immediate verbal resignation and the offer to allow him to consider his position demonstrated a measured and fair approach. The Commission concluded that Mr Praljak was not forced to resign and that his resignation was voluntary.

In light of the findings, the Fair Work Commission upheld the employer's jurisdictional objection and dismissed Mr Praljak's application. The decision underscored the importance of an objective analysis of the employer's conduct and the necessity for employees to demonstrate that they were left with no real choice but to resign due to the employer's actions. The Commission's ruling emphasised that subjecting an employee to disciplinary procedures alone does not constitute a forced resignation, and that the employer's conduct must be of such a nature that it leaves the employee with no effective or real choice but to resign.

Orders