Dean Emerson v Kempall Pty Ltd T/A Ray White Woollahra/Paddington - [2022] FWC 1864

[2022] FWC 1864

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.365—General protections

Dean Emerson

Kempall Pty Ltd T/A Ray White Woollahra/Paddington

(C2022/2796)

COMMISSIONER PLATT

ADELAIDE, 19 JULY 2022

Application to deal with contraventions involving dismissal – jurisdictional objection - whether the Applicant had been constructively dismissed – no constructive dismissal – application dismissed.

On 5 May 2022, Mr Dean Emerson (the Applicant) lodged a general protections application against Kempall Pty Ltd T/A Ray White Woollahra/Paddington (the Respondent) under s.365 of the Fair Work Act 2009 (the Act) alleging that on 14 April 2022, he was constructively dismissed in contravention of the general protections provisions of the Act.

On 24 May 2022, the Respondent filed a Form F8A Employer Response and raised a jurisdictional objection that Mr Emerson had not been dismissed. On 16 June 2022, the parties participated in a conciliation conference in front of one of the Commission’s staff conciliators. The matter did not resolve at conciliation.

As a result of the decision in Coles Supply Chain Pty Ltd v Milford,[1] I am required to determine the jurisdictional objection before the matter can proceed.

On 29 June 2022, a Directions Conference was conducted by telephone. Directions were issued for the filing of material in respect of the jurisdictional objection, and a Hearing was scheduled for 18 July 2022.

Both parties were required to file their materials by 11 July 2022. The Applicant filed written submissions yet failed to file any witness evidence in support of his position. This deficiency was raised with the Applicant, who was provided an extension until 2.00pm on 12 July 2022 to file any witness evidence. The Applicant filed a statement in support of jurisdiction at 8.12am on 13 July 2022. The Respondent objected to the Applicant’s statement on the basis that it had not been filed in compliance with the Directions and as such, receiving the statement would deny the Respondent procedural fairness.

I determined to receive the Applicant’s statement on the basis that, generally speaking, the information included in the statement was consistent with the material included in the Applicant’s Form F8 Application. To ameliorate any procedural fairness issues, the Respondent was given an extension to file any materials in reply.

A Hearing was conducted, by videoconference, on 18 July 2022. The Applicant was represented by Mr Paul Lewis, whilst the Respondent was represented by Mr Anthony Sissian. Both parties were granted permission to be represented by a lawyer under s.596(2)(a) on the basis of complexity and efficiency.

At the conclusion of the Hearing, I upheld the Respondent’s jurisdiction objection, and dismissed the general protections application on the basis that the Applicant had voluntarily resigned from his employment, and therefore had not been dismissed. The reasons for this decision follow.

Law

Section 365 of the Act provides:

“365 Application for the FWC to deal with a dismissal dispute

If:

(a) a person has been dismissed; and

(b) the person, or an industrial associated that is entitled 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.

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Details

AGLC: Dean Emerson v Kempall Pty Ltd T/A Ray White Woollahra/Paddington [2022] FWC 1864
Case: [2022] FWC 1864
Decision Date: 19 JULY 2022

CaseChat Overview and Summary

In the Fair Work Commission, Dean Emerson lodged an application against Kempall Pty Ltd T/A Ray White Woollahra/Paddington alleging he was constructively dismissed in contravention of the Fair Work Act 2009. The Respondent filed a jurisdictional objection arguing Mr Emerson had not been dismissed. Following a conciliation conference, the matter proceeded to a hearing. The central issue was whether Mr Emerson was constructively dismissed, which would have given the Commission jurisdiction to hear the matter. The Court found that Mr Emerson had not been constructively dismissed, as his decision to resign was driven by a desire to avoid a stain on his record and not due to any conduct by the employer that forced him to resign. The Court dismissed the application for lack of jurisdiction.

Orders