Erika Wilson v ACG Entities Pty Ltd - [2024] FWC 1729

[2024] FWC 1729

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Erika Wilson
v

ACG ENTITIES PTY LTD

(C2024/2842)

DEPUTY PRESIDENT MASSON

MELBOURNE, 2 JULY 2024

Application to deal with contraventions involving dismissal – jurisdictional objection – whether Applicant dismissed – jurisdictional objection upheld – found that Applicant was not dismissed within the meaning of s 386(1) of Act – application dismissed.

On the 29 April 2024, Ms Erika Wilson (the Applicant) lodged an application pursuant to s 365 of the Fair Work Act 2009 (the Act) in which she asserts that the termination of her employment on 15 April 2024 by ACG ENTITIES PTY LTD T/A Lamezleigh’s coffee house and eatery (the Respondent) contravened her workplace rights. In its Form F8A response the Respondent raised a jurisdictional objection to the application, that being the Applicant was not dismissed within the meaning of s 386 of the Act.

The Respondent’s jurisdictional objection is significant because the Applicant must have been dismissed in order to make a general protections dismissal dispute application[1]. Where there is a dispute about whether a person was dismissed, the Commission must determine that point before exercising its powers under s. 368 of the Act[2]. Consequently, the issue for determination is whether the Applicant was dismissed from her employment within the meaning of s. 386 of the Act.

Following allocation of the matter to my Chambers, Directions were issued on 22 May 2024 for the filing of material in relation to the jurisdictional objection. Both parties filed material in advance of the hearing listed for 1 July 2024. At the hearing on 1 July 2024 the Applicant appeared and gave evidence while Alanna Gobel, who is the owner, appeared and gave evidence for the Respondent.

Background and evidence

The Applicant commenced employment as a cook on a casual basis with the Respondent on 28 July 2023. On 26 February 2024 she advised Ms Gobel via text that she was unfit for work due to a back injury, indicated that she was in ‘excruciating pain’, would probably need to undergo scans and had an appointment with her specialist that day. She subsequently provided a medical certificate covering her absence from work for the period from 26 February - 11 March 2024.

On 5 March 2024, the Applicant had arranged to meet with Ms Gobel at the café for the purpose of providing an update on her health. The Applicant by that stage was aware that she would be off work due to her back condition for a longer period than she had initially expected. She says she wanted to give Ms Gobel as much notice as possible to arrange staff to cover her absence. A further medical certificate was provided by the Applicant to Ms Gobel at the meeting which covered the period from 11 March -16 April 2024.

The Applicant states that during their meeting Ms Gobel unexpectedly ‘demanded’ that she not speak with kitchen staff about any matters except essential work arrangements. While hesitant…

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: [2024] FWC 1729
Decision Date: 2 JULY 2024

CaseChat Overview and Summary

Erika Wilson lodged an application against ACG Entities Pty Ltd, alleging that her dismissal contravened her workplace rights under the Fair Work Act 2009. ACG Entities raised a jurisdictional objection, arguing that Ms Wilson was not dismissed within the meaning of section 386 of the Act. The central issue for determination was whether Ms Wilson had been dismissed, which is a prerequisite for the Commission to exercise its powers under section 368 of the Act. The background of the case involved Ms Wilson, a casual cook who had been absent from work due to a back injury. She had informed her employer, Alanna Gobel, of her intention to return to work upon receiving a medical clearance certificate, as previously agreed. However, the communication between Ms Wilson and Ms Gobel became strained, with Ms Wilson inferring from the lack of a direct confirmation and her removal from the payroll system that she had been dismissed. The Commission needed to ascertain whether Ms Wilson's employment was terminated by the employer or if she had resigned due to employer conduct.

The Commission concluded that Ms Wilson had not been dismissed within the meaning of section 386(1)(a) of the Act, as there was no formal notice of dismissal or clear indication from the employer that the employment relationship had ended. Ms Gobel's request for a direct discussion and her failure to provide a medical clearance certificate were cited as reasons for the communication breakdown rather than an intention to terminate employment. The Commission found that Ms Wilson's belief of being dismissed was based on her own inference and miscommunication rather than any action by the employer. Consequently, the jurisdictional objection was upheld, and the application was dismissed as Ms Wilson was not considered to be a dismissed employee for the purposes of the Act.

The Fair Work Commission dismissed the application on the grounds that Erika Wilson had not been dismissed within the meaning of section 386 of the Fair Work Act 2009. The decision was based on the lack of clear communication and misunderstandings between Ms Wilson and her employer, Alanna Gobel. An order giving effect to this decision will be separately issued.

Orders