Donna Byles v Retailcorp Pty Ltd - [2022] FWC 2537

[2022] FWC 2537

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Donna Byles
v

Retailcorp Pty Ltd

(U2022/5422)

COMMISSIONER SIMPSON

BRISBANE, 20 OCTOBER 2022

Application for an unfair dismissal remedy – jurisdictional objection – was the applicant dismissed – where the Applicant was unfairly dismissed – compensated awarded.

On 16 May 2022, Ms Donna Byles (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy against Retailcorp Pty Ltd (the Respondent).

On 14 June 2022, the Respondent filed a Form F3 Employer’s response objecting to the application on the jurisdictional grounds that the Applicant had not been dismissed.

As the matter could not be resolved by conciliation, directions were issued for the filing of material and the matter was listed for hearing on 8 September 2022 to determine the jurisdiction and substantive merits of the application.

At the hearing, the Applicant appeared on her own behalf. The Respondent sought to be represented by a lawyer or paid agent, which the Applicant did not oppose. Permission was granted for Ms Fiona Stanton from Francis Burt Chambers to appear for the Respondent.

It was not in contest in the proceedings that the Respondent had only 5 employees and on that basis the Small Business Fair Dismissal Code (the Code) applies. The Respondent did not raise the Code as a jurisdictional objection prior to the hearing, which is understandable in circumstances where the Respondent’s primary position is that there was no termination of employment at the initiative of the Respondent, however the Commission is still required to deal with the matter before determining the merits. I invited submissions on the issue before the conclusion of the hearing.

The Respondent submitted in closing that its submissions cover issues in relation to the Code as a summary dismissal was warranted. I will address this separate jurisdictional issue below.

Background and Evidence

The Applicant filed two sets of material on 10 August 2022 which were adopted as her evidence.[1] The Applicant filed another document on 23 August 2022 which she titled her response to the Respondent’s submissions, and responses to the witness statement of Mr Cherniakov. There were also separate documents on pages 36 to 39 of the Court Book. The material on pages 28 to 39 of the Court Book was admitted into evidence as one document.[2] These two sets of documents described above were admitted as the Applicant’s evidence in chief.

Mr Cherniakov provided a witness statement[3] dated 12 August 2022 and he adopted it as his evidence.

On 19 January 2016, the Applicant commenced employment with ‘Concrete Taxi’ as a scheduler based in Banyo, Queensland.

Respondent purchases business July 2020

Concrete Taxi was purchased by the Respondent, owned by Mr Paul Cherniakov in July 2020. The Applicant signed an employment agreement given to her by Mr Cherniakov and was from there on employed…

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: [2022] FWC 2537
Decision Date: 20 OCTOBER 2022

CaseChat Overview and Summary

The case of Byles v Retailcorp Pty Ltd involves a claim for unfair dismissal by the applicant, Donna Byles, against the respondent, Retailcorp Pty Ltd. The Fair Work Commission (FWC) was tasked with determining whether Ms Byles had been unfairly dismissed and, if so, to what extent she should be compensated. The central dispute centred on whether Ms Byles had resigned from her employment or if she had been dismissed by the respondent. The Commission was also required to consider whether the dismissal, if any, was consistent with the Small Business Fair Dismissal Code and, if not, whether it was harsh, unjust, or unreasonable. Ms Byles, a part-time employee, alleged she was dismissed after she refused to cover a shift when she believed she was to be replaced by a new hire. The respondent contended that Ms Byles had resigned because she had secured alternative employment. The Commission found that Ms Byles had not resigned but was instead dismissed by the respondent. The evidence did not support the respondent's belief that Ms Byles had resigned, as she had communicated her inability to cover the shift due to securing another job but had not intended to resign. The Commission further found that the dismissal was not consistent with the Small Business Fair Dismissal Code and was harsh, unjust, or unreasonable. The dismissal lacked a valid reason, and Ms Byles was not given an opportunity to respond to any reason related to her conduct. Consequently, the Commission ordered that Ms Byles be compensated for the period from her dismissal until she commenced new employment. The compensation was calculated based on her hourly wage and the number of days she would have worked had she not been dismissed, resulting in a total award of $1,649.20 plus a 10% superannuation contribution.

Orders