Ann Dillon v Hydrera Water Services Pty Ltd - [2024] FWC 1900

[2024] FWC 1900

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Ann Dillon
v

Hydrera Water Services Pty Ltd

(C2024/3693)

DEPUTY PRESIDENT DOBSON

BRISBANE, 19 JULY 2024

Application to deal with contraventions involving dismissal – jurisdictional objection – no dismissal – resignation – constructive dismissal – forced resignation - jurisdictional objection upheld

Ms Ann Dillon (the Applicant) lodged a general protections application involving dismissal to the Fair Work Commission (the Commission) on 4 June 2024. The Applicant claimed that adverse action was taken against her by Hydrera Water Services Pty Ltd (the Respondent) under ss.340, 343, and 352 of the Fair Work Act 2009 (Cth) (the Act).

The Respondent raised a jurisdictional objection that the Applicant was not dismissed. For the Applicant to be eligible to make a claim under s.365 of the Act, the Applicant will need to establish that she was dismissed in accordance with the definition in s.386 of the Act.

Following the Full Court of the Federal Court decision of Coles Supply Chain Pty Ltd v Milford,[1] the Commission must determine whether the Applicant was dismissed before it can exercise powers under s.368 of the Act to deal with a dispute about whether the Applicant was dismissed in contravention of the general protections provision.

The matter was heard by video using Microsoft Teams on 17 July 2024.

Permission to Appear

Section 596(1) of the FW Act provides that a party may be represented in a matter before the Commission by a lawyer or paid agent only with the permission of the Commission.

The Respondent sought leave to be represented before the Commission by a lawyer and the Applicant objected on the basis that she felt it would be unfair. I shall not traverse the submissions made in any great detail, but I was satisfied that granting leave would enable the matter to be dealt with more efficiently taking into account the complexity of the matter, noting that the legal representative had a duty first to the tribunal (which included assisting the Applicant where appropriate to do so) and that the assistance of legal representation would assist the Commission to deal with the matter more efficiently.

Background

The Applicant commenced employment with the Respondent on or around 4 October 2022, in the position of Quality, Health and Safety and Environment Manager, reporting to Mr Eddie Pigeon, General Manager of the Respondent. In her role, the Applicant was responsible for quality, work health and safety, environment, rehabilitation and return to work co-ordination, the provision of human resources assistance and document management for all sites across Australia.

The Applicant’s Submissions

I do not intend to repeat in detail all of the submissions made and evidence given, however I have nonetheless had regard to all of that information in my consideration.

The Applicant relevantly submitted that:

(a)Around 6 months after commencing in the role, the Applicant recommended that the Respondent automate and streamline their workplace health and safety systems with a new WHS…

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.

Keep reading for free

Create a free CaseChat account to read Ann Dillon v Hydrera Water Services Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] FWC 1900
Decision Date: 19 JULY 2024

CaseChat Overview and Summary

Ann Dillon filed a general protections application against Hydrera Water Services Pty Ltd, alleging that she was subjected to adverse action under sections 340, 343, and 352 of the Fair Work Act 2009. The Respondent challenged the jurisdiction of the Commission, arguing that Ms Dillon was not dismissed as required by section 365 of the Act. The central legal issue was whether Ms Dillon's resignation constituted a dismissal within the meaning of section 386 of the Act, which would give the Commission jurisdiction to hear her claims.

The Deputy President reviewed the evidence presented by both parties and considered the statutory definitions of dismissal and forced resignation. The Commission examined the circumstances surrounding Ms Dillon's resignation, particularly her actions and communications on 15 and 16 May 2024. The evidence suggested that Ms Dillon had accepted a job offer from another employer on 15 May 2024, which contradicted her claim that she had no other option but to resign. Given that Ms Dillon had demonstrated her willingness to return to work on 15 May 2024, the Deputy President concluded that her resignation was voluntary and not forced by the employer. Consequently, the Deputy President dismissed the application for lack of jurisdiction, finding that Ms Dillon had not been dismissed within the meaning of the Act.

The Deputy President ordered that the application be dismissed, and no further action could be taken by the Commission on the matter. This decision underscores the necessity for employees to prove that they were forced to resign due to employer conduct, a threshold that Ms Dillon could not meet based on the evidence presented.

Orders