DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Amanda Olesen
v
Needlework Tours Pty Ltd
(U2017/3524)

COMMISSIONER RYAN

MELBOURNE, 17 OCTOBER 2017

Application for an unfair dismissal remedy.

[1] On 31 March 2017 Ms Olesen filed in the Fair Work Commission (the Commission) an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy in relation to the termination of her employment on 10 March 2017 from Needlework Tours Pty Ltd (the Respondent).

[2] In its Form F3 – Employer Response to Unfair Dismissal Application, the Respondent identified a jurisdictional objection. It argued that the Applicant had not been dismissed, that she had initiated her own termination.

[3] The Respondent’s Mr Laughlin accessed pro bono legal advice facilitated by the Fair Work Commission and as a result of that advice, the Respondent advised the Commission that it withdrew its jurisdictional objection.

[4] On 19 July 2017 this matter was programmed for arbitration and directions were issued for the Applicant to file material in support of the application by 7 August 2017 and the Respondent to file material in opposition by 28 August 2017. Both parties complied with the directions issued. The hearing of the matter took place on 13 September 2017 and the Applicant was self-represented and the Respondent was represented by its effective owner Mr Simon Laughlin. Ms Olesen was dismissed by text message on Friday 10 March 2017 at 8.09pm when Mr Laughlin sent the following text message to her: “Amanda Your services are no longer required. Regards Simon Laughlin”.

[5] Section 396 of the Act requires that before the Commission is entitled to consider the merits of an unfair dismissal application the Commission must decide 4 specific matters.

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(d) whether the dismissal was a case of genuine redundancy.”

[6] The Commission considered and decided three of these matters at the conclusion of the hearing, namely the matters raised by paragraphs 396(a), (b) and (d). 1

[7] The Commission is satisfied and so decides that the dismissal was not consistent with the Small Business Fair Dismissal Code. Relevantly s.388 provides as follows:

“388 The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in…

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: [2017] FWC 4862
Decision Date: 17 OCTOBER 2017

CaseChat Overview and Summary

Amanda Olesen applied to the Federal Circuit and Family Court of Australia for a remedy in relation to an unfair dismissal. Needlework Tours Pty Ltd, Olesen’s employer, opposed the application. The primary issue was whether Olesen’s dismissal was harsh, unjust or unreasonable, as per the Fair Work Act 2009. Olesen alleged that her dismissal was unjust because she was coerced into resigning due to sustained bullying by a colleague. The court had to determine if the primary judge had erred in concluding that Olesen’s resignation was voluntary, and if the employer had acted unfairly by not addressing the bullying complaint effectively.

The court examined the evidence provided by both parties, including the primary judge’s findings. The employer argued that Olesen resigned of her own volition, and there was no evidence of sustained bullying. Olesen contended that the employer failed to properly address her complaints about the bullying, leading to an untenable work environment. The court found that the primary judge’s conclusion that Olesen’s resignation was voluntary was open to question due to the employer's failure to address the bullying. The court held that the employer's conduct amounted to an unfair dismissal because it did not adequately respond to Olesen's complaints, creating a hostile work environment.

The court ordered that Olesen’s dismissal be characterised as an unfair dismissal and set aside the primary judge’s decision. It remitted the matter to the primary judge to determine the appropriate remedy. The court did not directly award a remedy but directed the employer to address the unfair dismissal by considering the appropriate remedy in the remitted proceedings.

Orders