DECISION

Fair Work Act 2009
s.365—General protections

Arlene Wright
v
Navy Club Incorporated
(C2020/7909)

DEPUTY PRESIDENT YOUNG

MELBOURNE, 24 MAY 2021

Application to deal with contraventions involving dismissal – no dismissal – application dismissed.

[1] This decision concerns an application by Ms Arlene Wright under section 365 of the Fair Work Act 2009 (Act) alleging that she was dismissed in contravention of the general protections contained in Part 3-1 of the Act.

[2] The Respondent objects to the application on the basis that:

(a) Ms Wright was not dismissed; and

(b) the application was not filed within 21 days after the dismissal took effect as is required by section 366(1) of the Act.

[3] On 14 January 2021 I issued directions for the parties to file materials, with revised directions issued on 10 February 2021. Materials were filed by Ms Wright on 8, 10, 17 and 25 February 2021 and by the Respondent on 5 March 2021.

[4] On 15 March 2021 I conducted the proceeding by way of determinative conference via Microsoft teams. At the determinative conference Ms Wright appeared on her own behalf. Ms Wright also called Mr Jeffery Ramage as a witness. In addition, Ms Wright filed a witness statement for Ms Dianne Russell, however Ms Russell did not attend the determinative conference. Accordingly, I have not had regard to her evidence. Ms Kate Sloss, appeared on behalf of the Respondent and also called Ms Kylie Powley as a witness. In addition to Ms Powley, the Respondent also filed witness statements for Ms Donna-Lee Game, Mr John Silva and Mr Jason Murtagh, however, Ms Sloss confirmed at the commencement of the determinative conference that the Respondent no longer sought to rely upon the evidence of those witnesses. Accordingly, they were not called and I have not had regard to their evidence.

Section 365 and section 386 of the Act

[5] Section 365 of the Act provides that a person who has been dismissed may apply to the Fair Work Commission (Commission) for the Commission to deal with the dispute.

[6] Section 386 of the Act provides that a person has been dismissed if the person’s employment with his or her employer has been terminated on the employer’s initiative 1 or the person has resigned from his or her employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.2

[7] The Respondent contends that Ms Wright’s employment was not terminated at its initiative, rather her employment ended by way of resignation. The Respondent submits that Ms Wright was therefore not dismissed within the meaning of section 368 of the Act 3 and as such, the Commission does not have jurisdiction to deal with the dispute.4 Ms Wright concedes that she resigned from her employment with the Respondent5 but contends that she was forced to do so because of conduct of the Respondent.6

Section 366 of the Act

[8] Section 366…

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] FWC 2976
Decision Date: 24 MAY 2021

CaseChat Overview and Summary

Arlene Wright, a former employee, filed an application against the Navy Club Incorporated, her former employer, in a relevant Australian court. The application was made under a specific legislative provision concerning contraventions involving dismissal. Wright's case alleged that the club had breached certain employment-related laws, and she sought redress for what she claimed were unfair dismissal practices. The court was tasked with determining whether the application could proceed under the relevant statutory framework, considering the nature of the employment termination and the applicable legal standards.

The central legal issues before the court were whether the statutory provision applied to Wright's situation and if the employment termination constituted a dismissal within the meaning of the legislation. The court had to examine whether the facts supported the assertion that Wright had been unfairly dismissed and whether the application was appropriately framed under the statute. Additionally, the court considered whether the statutory application was applicable when no formal dismissal had occurred.

The court concluded that the statutory application was not appropriate in this instance because there was no formal dismissal that could be challenged under the relevant legislation. The court found that Wright had not been dismissed but had rather left the employment voluntarily. As such, the statutory provision did not apply, and the application was deemed invalid. Consequently, the application was dismissed, and no further action could be taken under the specified legislative framework. The court's decision was based on the clear distinction between voluntary departure and dismissal, and the absence of a formal dismissal precluded the application from proceeding.

Orders