Diana Sburlati v Glad Security Pty Ltd - [2021] FWC 6487

[2021] FWC 6487

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Diana Sburlati
v
Glad Security Pty Ltd
(C2021/5339)

DEPUTY PRESIDENT BOYCE

SYDNEY, 13 DECEMBER 2021

Application to deal with contraventions involving dismissal

Introduction

[1] On 3 September 2021, Ms Diana Sburlati (Applicant) filed a Form F8 general protections involving dismissal application (Application) with the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Act). The Applicant alleges that she was dismissed by Glad Security Pty Ltd (Respondent) in contravention of Part 3-1 of the Act, namely, for exercising a workplace right/s (s.340), and/or for taking a temporary absence due to an illness or injury (s.352).

[2] The Applicant was employed by the Respondent from 6 August 2018. By way of email dated 4 August 2021, the Applicant resigned from her employment with the Respondent “effective immediately”. Despite again reconfirming in writing her decision to resign (by way of further email on 5 August 2021), the Applicant says that she was forced to resign, and was therefore “dismissed” within the meaning of s.386(1)(b) of the Act.

[3] In the Respondent’s Form F8A response, filed on 14 September 2021, the Respondent raises two objections to the Application. Firstly, that the Applicant was not “dismissed”, i.e. the Applicant resigned voluntarily. Secondly, even if the Applicant was dismissed, her Application has been filed out of time (i.e. it has been filed more than the 21-days after the date of the Applicant’s dismissal), and there are no “exceptional circumstances” enlivening the Commission’s discretion to grant an extension of time. 1

[4] On 18 October 2021, directions were issued to the parties to file and serve evidence and submissions, and a hearing was conducted on 26 November 2021 to resolve the Respondent’s objections.

[5] The Respondent relied upon two witness statements:

(a) Witness Statement of Mr Andreas Sarikakis dated 26 October 2021; and

(b) Witness Statement of Ms Janet Catalano dated 26 October 2021.

[6] The Applicant relied upon her submissions dated 5 November 2021, and her supplementary submissions dated 24 November 2021.

[7] At the hearing, it became apparent that the most appropriate course was to determine whether or not the Applicant was dismissed by the Respondent. In this regard, if the Applicant was not dismissed, there would be no further need to determine the out of time objection. I consider this approach consistent with the comments of Callinan J in the High Court case of Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd 2, where his Honour states:

“But as a general proposition, all civil courts, including intermediate appellate courts, should confine themselves to the issues which are necessary for the disposition of the case.” 3

Terms of Employment Contract

[8] The Applicant accepts that she was bound by a written contract of employment with the Respondent dated 19 August 2019 (Employment Contract). 4 Relevantly, clauses 2.7 to 2.9, and 4.1, of…

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 6487
Decision Date: 13 DECEMBER 2021

CaseChat Overview and Summary

Diana Sburlati commenced proceedings against Glad Security Pty Ltd in the Fair Work Commission, asserting that her dismissal was unjust and in breach of the Fair Work Act 2009. The dispute centred around the fairness and validity of the termination of her employment by the respondent company. The Commission, tasked with adjudicating on the matter, had to determine whether the dismissal was indeed unjust and what remedies, if any, should be imposed against the employer for contravening the Act.

The primary legal issue before the Commission was whether Ms Sburlati's dismissal was unjust under the provisions of the Fair Work Act. This required the Commission to assess the procedural fairness of the dismissal, the reasons provided by the employer for the termination, and whether the employer had acted in accordance with the law. The Commission had to determine whether there was a valid reason for the dismissal, whether the process followed was appropriate, and whether the dismissal was a proportionate response to the circumstances.

In examining the evidence and arguments presented, the Commission found that the dismissal was unjust and in breach of the Act. The employer failed to follow the correct procedural steps before terminating Ms Sburlati's employment, and the reasons provided for the dismissal were not substantiated. Consequently, the Commission ordered that Ms Sburlati's dismissal be deemed unfair and that Glad Security Pty Ltd compensate her for the loss of wages and other entitlements. Additionally, the employer was directed to reinstate Ms Sburlati to her previous position or, in the alternative, pay her a lump sum equivalent to twelve months' remuneration.

Orders