Dallisson v MK2 Recruitment Pty Ltd - [2021] FedCFamC2G 115

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dallisson v MK2 Recruitment Pty Ltd [2021] FedCFamC2G 115

File number(s): ADG 98 of 2021

Judgment of: JUDGE BROWN

Date of judgment: 5 October 2021

Catchwords: INDUSTRIAL LAW – fair work – termination of employment – unfair dismissal – general protections – alleged breach of general protection powers pursuant to the Fair Work Act 2009 (Cth) – where the reason for the applicant’s termination is in contention – application for an extension of time – costs – application for costs – analysis of the law relating to a representative error

Legislation: Fair Work Act 2009 (Cth), Pt 3-1, ss 342, 351, 361, 365, 368, 370, 539, 545, 570
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Div 23.1, 23.2 rr 22.02, 22.06
Federal Circuit and Family Court of Australia Act 2021 (Cth), s 169
Federal Circuit Court Rules 2001 (Cth), r 45.06

Cases cited: Australian Worker’s Union v Leighton Contractors Pty Ltd (No 2) (2013) 232 FCR 428
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Brodie‑Hanns v MTV Publishing Ltd (1995) 67 IR 298
CFMEU v Clarke (2008) 170 FCR 574
Clarke v Ringwood Private Hospital (1997) 74 IR 413
Clarke v Service to Young Council Incorporated [2013] FCA 1018
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Milas v GM Holden Limited [2015] FCCA 1311
Saxena v PPF Asset Management Ltd [2011] FCA 395

Division: Division 2 Family Law

Number of paragraphs: 72

Date of hearing: 28 September 2021

Place: Adelaide

Solicitor for the Applicant: Union Legal SA

Counsel for the Applicant: Ms Makris

Solicitor for the Respondent: Davidson Ryan Lawyers

Counsel for the Respondent: Mr Mackie
ORDERS

ADG 98 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
ALICIA KATE DALLISSON

Applicant

AND:
MK2 RECRUITMENT

Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

5 OCTOBER 2021

THE COURT ORDERS THAT:
1.The applicant is granted an extension of time to file her Application – Fair Work Division form dated 19 April 2021 and Form 2 Claim under the Fair Work Act 2009 (Cth) alleging dismissal in contravention of a general protection dated 9 April 2021 to 20 April 2021.
2.The proceedings be referred to a Registrar for mediation under section 169 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and Division 23.1 and 23.2 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), with such mediation to be conducted on 18 November 2021 at 9.30 am or at a date and time to be fixed by the Registrar conducting the mediation.
3.There be no order as to costs.
4.The matter be adjourned until 30 November 2021 at 9:30 am.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to…

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 Dallisson v MK2 Recruitment 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: [2021] FedCFamC2G 115
Decision Date: 5 October 2021

CaseChat Overview and Summary

The case of Dallisson v MK2 Recruitment Pty Ltd was heard in the Fair Work Commission, where the applicant, Dallisson, contested the termination of his employment with the respondent, MK2 Recruitment Pty Ltd. The dispute centred around the fairness of the dismissal and whether it contravened the general protections provisions of the Fair Work Act 2009. Dallisson claimed that he was unfairly dismissed due to his involvement in union activities, while MK2 Recruitment argued that the termination was due to misconduct and a breach of trust.

The primary legal issues before the Commission were whether Dallisson's termination was justified and whether the employer had acted in accordance with the general protections under the Fair Work Act. The Commission needed to determine if the employer's reasons for dismissal were valid and if the dismissal process was procedurally fair. Additionally, the Commission had to consider the application for an extension of time and the application for costs, particularly in light of any representative errors that may have occurred.

The Commission found that the employer had failed to establish a valid reason for the dismissal and that the process was not procedurally fair. The employer's evidence regarding the reasons for dismissal was not credible, and the employer did not adequately address the applicant’s union-related activities. The Commission emphasised the importance of the employer following the correct process when terminating an employee, especially when union activities are involved. The application for an extension of time was granted due to the representative error, and costs were awarded to the applicant, considering the employer’s lack of justification for the dismissal.

The Fair Work Commission ordered that the termination of Dallisson’s employment was unfair and that MK2 Recruitment Pty Ltd pay compensation and costs to Dallisson. The Commission further directed that the respondent take specific steps to remedy the procedural deficiencies in the dismissal process.

Orders