DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Diana Tansey
v
Codebots Pty Ltd
(U2021/1424)

DEPUTY PRESIDENT LAKE

BRISBANE, 10 DECEMBER 2021

Application for an unfair dismissal remedy – jurisdictional objection – whether there was a dismissal – the Applicant was not dismissed – where the Applicant resigned.

[1] This decision concerns an application by Diana Tansey (the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Applicant claims that she was dismissed from her employment with Codebots Pty Ltd (Codebots / the Respondent) and that her dismissal was harsh, unjust and unreasonable.

[2] The Respondent objects to the application on the grounds that the Applicant was not dismissed within the meaning of s.386 of the Act, rather she had resigned. Late in proceedings, the Respondent raised a further jurisdictional objection, namely that the Applicant earned more than the high income threshold. For the reasons set out below, it is unnecessary for me to determine the latter objection.

[3] As to the other matters that s.396 of the Act requires me to decide before considering the merits of an unfair dismissal application, I am satisfied the Applicant had completed the minimum employment period, the Respondent is not a small business so the Small Business Fair Dismissal Code is not relevant, and the alleged dismissal was a case of genuine redundancy.

[4] This matter was the subject of an appeal and was returned to me for a hearing on the jurisdictional matter regarding whether there was a dismissal. The other jurisdictional matters that had been raised, had been resolved. Each party was afforded an opportunity to put on any further material upon which they sought to rely, and the matter was listed for hearing on 19 October 2021. At that hearing, the Applicant gave evidence on her own behalf and the Respondent relied on the evidence of Dr Eban Escott and Mr Liam Robinson.

[5] Both parties sought permission to be represented. In the interests of conducting the matter efficiently and fairly (particularly given the breakdown in the relationship between the parties), I was satisfied that it was appropriate to permit each party to be legally represented. Consequently, Elizabeth Ticehurst of Activate Law appeared for the Applicant, while Troy Spence of Counsel appeared for the Respondent, instructed by Ricky Lee of Globalex Tax & Legal.

Background

[6] Though much of the background was set out in my previous decision, 1 it is worth briefly summarising the factual matrix from which this dispute arises. The Respondent’s CEO, Dr Eban Escott, approached the Applicant to join him in becoming a co-founder in a technology company called WorkingMouse Pty Ltd (WorkingMouse) because he saw that his technical skills could be complimented by the Applicant’s community development skills. The Applicant agreed to join the Respondent. The agreed renumeration package was a lower salary however it was topped up with a number of shares which Dr Escott…

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 6588
Decision Date: 10 DECEMBER 2021

CaseChat Overview and Summary

Diana Tansey sought relief from the Fair Work Commission for an unfair dismissal remedy against Codebots Pty Ltd. Ms Tansey, the Applicant, alleged that she had been subjected to unfair treatment and was constructively dismissed by her employer, Codebots, the Respondent. The dispute came before the Fair Work Commission, which was tasked with determining whether the dismissal was indeed unfair and whether Ms Tansey had been wrongfully terminated.

The primary legal issues before the Commission were whether Ms Tansey was genuinely dismissed by Codebots and if so, whether that dismissal was unfair. A crucial aspect of the case was whether Ms Tansey had actually resigned or if her resignation was influenced by Codebots' conduct to the point of being considered a dismissal. The Commission needed to clarify whether the resignation was voluntary or whether it could be characterised as a constructive dismissal, which would imply that Codebots' actions made the workplace untenable.

The Commission found that Ms Tansey had not been dismissed by Codebots but had instead resigned from her position. The evidence presented indicated that her resignation was voluntary and not coerced by any actions or omissions on the part of Codebots. Consequently, the Commission held that there was no dismissal for them to assess as unfair. The Applicant’s resignation was accepted as genuine, and no unfair dismissal remedy was available under these circumstances. As a result, the Commission dismissed the application on the basis that there was no dismissal to deem unfair.

Orders