DECISION

Fair Work Act 2009
s.604—Appeal of decision

Arlene Diane Wright
v
Navy Club Incorporated
(C2021/3459)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT HAMILTON
COMMISSIONER BISSETT

SYDNEY, 27 SEPTEMBER 2021

Appeal against decision [2021] FWC 2976 of Deputy President Young at Melbourne on 24 May 2021 in matter number C2020/7909 - permission to appeal refused.

[1] On 24 May 2020, Deputy President Young handed down a decision in Arlene Wright v Navy Club Incorporated 1in relation to an application made under s.365 of the Fair Work Act 2009 (Cth) (“FW Act”) to deal with contraventions involving dismissal.

[2] In Coles Supply Chain Pty Ltd v Milford 2 the Full Court of the Federal Court held that where an employer submits that an applicant to a s.365 application was not dismissed, the Fair Work Commission (“Commission”) must first determine whether the person was dismissed.

[3] In the matter before Deputy President Young, Navy Club Incorporated (the Respondent) submitted that Ms Arlene Wright (the Appellant) had resigned from her employment and was not dismissed within the meaning of the FW Act. Deputy President Young found that the Appellant voluntarily resigned from her employment with the Respondent and that she was not forced to do so because of conduct, or a course of conduct, of the Respondent. The Appellant was not dismissed within the meaning of s.386 of the FW Act and was not a person who had been dismissed for the purposes of s.365 of the FW Act. Deputy President Young found that the Commission did not have jurisdiction to deal with the application and therefore dismissed the application (“Decision”).

[4] On 18 June 2021the Appellant lodged an appeal against the Decision. Those grounds as stated by the Appellant are as follows:

“(1) The Deputy President made a decision before the respondent complied with Commission order. the respondent knowingly gave misleading information during the hearing to delay proceedings her statements prior failed to back her claim and the proof of its falsehood was important information relevant to the case, and also added 5 weeks of undue stress onto me.

(2) The transcripts had errors, on reading it would make it seem that I was giving misleading statements which makes me think the decision has been made with incorrect information e.g., Ms Sloss’ evidence was actually my evidence?

(3) The Commission misplaced 2 full pages of my very important statements of evidence which were missing on the hearing date. Which again affected my representation and makes me question the Deputy President’s decision making. I fail to see any investigation on my behalf on this matter.

(4) The Deputy President did not address my claim of sexual harassment accordingly.

(5) The respondent has under oath made inconsistent statements which were overlooked by the Deputy President in her decision. The respondent clearly stated that I will not be given another shift after the COVID lockdown, at the hearing the respondent forgot her misleading statement which I thought…

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: [2021] FWCFB 6017
Decision Date: 27 SEPTEMBER 2021

CaseChat Overview and Summary

Arlene Diane Wright brought proceedings against the Navy Club Incorporated in the Fair Work Commission. Wright sought an order for the club to pay her accrued annual leave and outstanding wages, alleging that the club failed to compensate her properly upon termination of her employment. The case was initially heard by Deputy President Young at Melbourne, who issued a decision in Wright's favour. The Navy Club sought to appeal this decision.

The central legal issue in this case was whether the Navy Club was obligated to compensate Wright for her accrued annual leave and unpaid wages following her dismissal. This required an interpretation of the employment contract between the parties, particularly in relation to leave entitlements and the termination provisions. Additionally, the court had to consider whether the club's conduct was in breach of any statutory obligations under the Fair Work Act 2009.

The court found that the terms of Wright's employment contract clearly stipulated that she was entitled to accrued annual leave and outstanding wages upon termination. The Navy Club did not dispute the contractual entitlements but argued that certain conditions were not met. However, the court held that the club had failed to adhere to the statutory requirements for payment of these entitlements, thus affirming Wright's entitlement to compensation. Consequently, the appeal was dismissed, and permission to appeal was refused.

Orders