DECISION

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

Diana Tansey
v
Codebots Pty Ltd
(U2021/1424)

DEPUTY PRESIDENT LAKE

BRISBANE, 12 JULY 2021

Application for an unfair dismissal remedy – jurisdictional objection – whether there was a dismissal – whether the application was made within time – the Applicant was dismissed – application made within time – jurisdictional objections dismissed.

[1] This decision concerns an application by Ms 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 (the Respondent) and that 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 and that, even if she was, her application was lodged out of the time period prescribed by s.394 of the Act. The Respondent also claims that the Applicant has identified the wrong employing entity.

[3] Section 396 of the Act requires that the Commission decide four preliminary matters before considering the merits of an unfair dismissal application. I am satisfied that the Applicant was a person protected from unfair dismissal, as she had completed the minimum employment period and earned less than the high-income threshold. I am also satisfied that the Respondent is not a small business, so the Small Business Fair Dismissal Code is not relevant. Further, it is not suggested that the alleged dismissal was a case of genuine redundancy.

[4] To determine whether the fourth preliminary matter is met – that is, whether the Applicant made her application within the period prescribed by s.394(2), being 21 days after the dismissal took effect, or such further period as the Commission has allowed – I must first determine whether a dismissal occurred at all.

[5] The parties agreed these jurisdictional issues could be determined on the papers prior to any hearing of the merits of the application. This seemed an appropriate course, particularly given each party had the benefit of representation. In addition to the Form F2 and Form F3, each party filed written submissions and the Applicant also filed an affidavit.

Background

[6] It is necessary to consider the context in which this dispute arises. The Applicant commenced employment with an entity called WorkingMouse Pty Ltd (WorkingMouse) as a full time Community Lead on 9 January 2017. Both WorkingMouse and the Respondent are wholly owned subsidiaries of East Cottage Industries Pty Ltd. Mr Eban Escott is the CEO for both companies.

[7] On 1 July 2018, the Applicant entered a part-time employment contract with the Respondent for the position of ‘Community Lead’. Her employment was transferred to the Respondent and her service with WorkingMouse was recognised. The Respondent paid the Applicant’s salary and provided her payslips. When the Applicant took up a different role with WorkingMouse in August…

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 4076
Decision Date: 12 JULY 2021

CaseChat Overview and Summary

In the matter of Diana Tansey v Codebots Pty Ltd, the applicant, Ms Tansey, sought a remedy for unfair dismissal against the respondent, Codebots Pty Ltd. The case was heard in the Fair Work Commission, Australia's industrial relations tribunal. Ms Tansey alleged that she was dismissed from her employment without just cause or excuse, and that the dismissal was harsh, unjust, or unreasonable.

The primary legal issues before the Commission were whether Ms Tansey had indeed been dismissed from her employment, whether the application for an unfair dismissal remedy was lodged within the requisite time frame, and if the Commission had jurisdiction to hear the case. The respondent argued that Ms Tansey was not dismissed but rather that her employment had terminated due to the natural conclusion of a fixed-term contract. Additionally, Codebots Pty Ltd contended that the application was untimely and that the Commission lacked jurisdiction to hear the matter.

The Commission found that Ms Tansey had indeed been dismissed from her employment. This conclusion was based on the evidence that her employment had not naturally concluded but was terminated by the employer. Furthermore, the Commission held that the application was made within the stipulated time frame, and the jurisdictional objections were dismissed. As such, the Commission found that it had jurisdiction to hear the case and proceed with the merits of the unfair dismissal application. The Commission will now consider whether the dismissal was unfair, unjust, or unreasonable.

The Commission dismissed the jurisdictional objections raised by the respondent and found that the application was both timely and within its jurisdiction. The case will now proceed to determine if the dismissal was unfair, unjust, or unreasonable.

Orders