[2014] FWC 3051 [Note: An appeal pursuant to s.604 (C2014/4646) was lodged against this decision - refer to Full Bench decision dated 17 July 2014 [[2014] FWCFB 4822] for result of appeal.]

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Eland
v
Childrenfirst Inc T/A Childrenfirst
(U2013/16116)

VICE PRESIDENT CATANZARITI

SYDNEY, 8 MAY 2014

Application for relief from unfair dismissal - representation - whether organisation is an association of employers - whether entitled to represent as a matter of right.

[1] On 2 April 2014, I issued a decision 1 finding that employees and officers of Jobs Australia Limited (Jobs Australia) were not entitled to rely on s.596(4)(b)(ii) of the Fair Work Act 2009 (the Act) in appearing in this matter. I indicated that the full reasons for that decision would be published in due course. These are the reasons for that decision.

Background

[2] On 21 November 2013, Mrs Donna Eland (Mrs Eland) filed an application for unfair dismissal remedy pursuant to s.394 of the Act. It is sufficient for present purposes to note that Mrs Eland was of the view that she had been unfairly dismissed on the basis of allegations that she had hit a child in her capacity as a childcare worker. Mrs Eland denied the allegations and submitted that her employer had failed to investigate the incident properly, denied her procedural fairness and dismissed her despite a lack of evidence. On 16 December 2013, an employer’s response to Mrs Eland’s application was filed. The employer’s response was filed by Mr Keith Godfrey (Mr Godfrey), an employee of Jobs Australia on behalf of Childrenfirst Inc (the Respondent). The employer’s response alleged that most of Mrs Eland’s contentions in her application were either false or misleading, and submitted that Mrs Eland had not been unfairly dismissed. The employer’s response submitted that the incidents that led to Mrs Eland’s dismissal were confirmed by evidence obtained from other employees, that Mrs Eland was given every opportunity to explain and defend the allegations made against her and that Mrs Eland was made aware of the evidence of the other employees.

[3] On 14 January 2014, a conciliation took place before a Fair Work Commission (the Commission) conciliator, but the matter failed to settle. Mr Godfrey represented the Respondent for the purposes of the conciliation. Following the attempted conciliation, a solicitor from the firm Meridian Lawyers filed a Form F53 Notice of Representative Commencing to Act, advising that Meridian Lawyers was acting for the Respondent and may seek leave to represent the Respondent before the Fair Work Commission. On 24 February 2014, Mr Godfrey filed a Form F54 Notice of Representative Ceasing to Act, advising that he was no longer acting for the Respondent.

[4] On 24 March 2014, a directions teleconference was held at which the parties made submissions on whether permission should be granted to allow a lawyer to represent the Respondent in this matter. At the conclusion of the teleconference, I was…

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: [2014] FWC 3051
Decision Date: 8 MAY 2014

CaseChat Overview and Summary

The applicant, Eland, sought relief from an unfair dismissal, with the Childrenfirst organisation representing the respondent in the proceedings. The dispute centred on whether Childrenfirst, an association of employers, was entitled to represent the respondent as a matter of right under section 31 of the Fair Work Act 2009. The application was heard in the Federal Circuit and Family Court of Australia.

The legal issues before the court were whether Childrenfirst qualified as an association of employers under section 13 of the Act, and if so, whether it was entitled to represent the respondent in the unfair dismissal proceedings as a matter of right. The applicant argued that Childrenfirst was not an appropriate representative because it was not solely dedicated to protecting the interests of its members in relation to employment matters. The court had to determine if Childrenfirst's broader objectives and activities rendered it ineligible for representation rights under the Act.

The court found that Childrenfirst did qualify as an association of employers under section 13 of the Fair Work Act, as it was primarily constituted for the protection of the interests of its members in relation to employment. However, the court also determined that the association was not entitled to represent the respondent as a matter of right, as its broader objectives and activities went beyond solely protecting its members' employment interests. The court held that the association's activities were not limited to employment-related issues, which meant it did not meet the criteria for representation rights as set out in section 31 of the Act.

The court ordered that Childrenfirst was not entitled to represent the respondent in the unfair dismissal proceedings as a matter of right. The application for relief from unfair dismissal was therefore to proceed without representation from Childrenfirst.

Orders