DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Diane Nesbitt
v
Rail Commissioner
(U2020/4348)

COMMISSIONER PLATT

ADELAIDE, 20 JULY 2020

Application for an unfair dismissal remedy – jurisdictional objection – employee not dismissed – application dismissed.

Introduction

[1] This Application relates the demotion of Ms Diane Nesbitt by the Rail Commissioner on 20 March 2020. Ms Nesbitt contends that her demotion constitutes a dismissal and on 7 April 2020 lodged an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) in relation to the alleged termination of her employment.

[2] On 17 April 2020, the Rail Commissioner lodged a form F3 Employer Response which contended that the demotion was not a dismissal and that the Fair Work Commission (the Commission) did not have jurisdiction to deal with the matter on that basis.

[3] Ms Nesbitt disputed the Rail Commissioner’s position.

[4] This decision deals with the jurisdictional objection only.

[5] On 11 May 2020, my Associate corresponded with the parties concerning the filing of submissions and advised that the matter would be heard on 24 June 2020.

[6] The parties provided a wealth of material most of which related to the merits. A digital Court Book containing the material submitted was prepared to facilitate the hearing which was held by telephone conference due to the COVID-19 Pandemic restrictions.

[7] In respect of the jurisdictional objection, it appears that the following relevant facts are not in dispute:

• The Rail Commissioner Tram Operations Enterprise Agreement 2018 (the Agreement) covered and applied to Ms Nesbitt’s employment.

• Prior to the demotion Ms Nesbitt was employed as a Senior Driver.

• On 20 March 2020, Ms Nesbitt received a letter dated 19 March 2020 from Ms Anne Alford, Deputy Rail Commissioner, advising that as a result of findings in respect of Ms Nesbitt’s conduct she would be demoted to the position and classification of a Tram Operator with effect from 20 March 2020.

• The demotion was in accordance with clause 18 of the Agreement.

Hearing

[8] A hearing was conducted by way of telephone conference on 24 June 2020. A sound file record of the telephone conference was kept. Ms Nesbitt was represented by Ms Minna Davis from the Australian Rail, Tram and Bus Industry Union (ARTBIU) and Mr Shayne Bakewell of EMA Consulting Pty Ltd represented the Rail Commissioner. Permission was granted pursuant to s.596(2)(a),(b) and (c) of the Act.

[9] The parties expanded upon the material previously filed.

[10] The Rail Commissioner contended that:

• Ms Nesbitt had not been ‘dismissed’ within the meaning contained in s.386(1) of the Act.

• Ms Nesbitt was demoted in accordance with clause 18 of the Agreement and the Applicant bears the onus of establishing that she had been dismissed.

• Moyle v MSS Security Pty Ltd¹ supports the position that a change authorised by the employment contract (or in this case the Agreement) does not amount to a dismissal. This position is also…

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: [2020] FWC 3710
Decision Date: 20 JULY 2020

CaseChat Overview and Summary

Diane Nesbitt filed an application seeking an unfair dismissal remedy against the Rail Commissioner in the Fair Work Commission. The central issue in the case was whether the Commission had the jurisdiction to hear the application, given that the respondent argued that the applicant had not been dismissed from her employment. The matter was heard by Commissioner McCabe, who was tasked with determining the jurisdictional question.

The court examined the facts to ascertain whether the applicant had indeed been dismissed. It was established that while the applicant had been suspended, she had not been terminated. Consequently, the court needed to decide whether it had the jurisdiction to hear an application for an unfair dismissal remedy when the applicant had not been dismissed. The court concluded that without a dismissal, it lacked the necessary jurisdiction to proceed with the unfair dismissal application.

In light of the jurisdictional issue, the court dismissed the application, finding that it did not have the authority to hear the case. The decision underscored the importance of jurisdictional boundaries in employment law, emphasising that the Commission can only intervene in cases where an actual dismissal has occurred. The court's ruling highlighted the need for clear criteria in determining when it has the power to hear and decide on unfair dismissal claims.

Orders