Georgina Evans v T. Monzer & Co Pty Ltd - [2023] FWC 1099

[2023] FWC 1099

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Georgina Evans
v

T. Monzer & Co Pty Ltd

(C2023/796)

DEPUTY PRESIDENT EASTON

SYDNEY, 9 MAY 2023

Application to deal with contraventions involving dismissal – jurisdictional objection – resignation – respondent filed witness statements in accordance with directions – applicant has not responded to any communications from the Commission – procedural fairness – fair opportunity to prepare and present a case – available filed material indicates that the Applicant resigned her employment – lack of contrary material – lack of challenge to filed material – application dismissed.

On 15 February 2023 Ms Georgina Evans applied to the Fair Work Commission under s.365 of the Fair Work Act 2009 (Cth). Ms Evans claims that she was dismissed from her employment with T. Monzer & Co Pty Ltd and that the dismissal contravened the general protection provisions of the Act.

T. Monzer & Co Pty Ltd (Monzer) maintains that Ms Evans resigned her employment and was not ever dismissed.

“A person who has been dismissed”

Ms Evans may only make a claim if she is “a person who has been dismissed” (per s.365(a)). “Dismissed” is defined in s.12 of the Fair Work Act 2009 (Cth) (the Act) by reference to s.386. Section 386 is in the following terms:

“386 Meaning of dismissed
(1) A person has been dismissed if:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) …”

The Fair Work Commission can deal with applications under s.365 of the Act by way of conciliation or mediation under s.368. If the Commission is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful it can issue a certificate under s.368(3).

If there is a contest about whether the Commission’s jurisdiction to deal with a dispute has been properly engaged, the Commission must resolve that contest before it can exercise its powers under s.368 (per Coles Supply Chain v Milford [2020] FCAFC 152, (2020) 300 IR 146 at [65] (Milford)). In determining the limits of its authority the Commission may determine matters of fact (per Milford at [71]).

On 23 March 2023 I made directions requiring the parties to file certain material by set dates in order to prepare the matter for a hearing scheduled for 8 May 2023. The Directions required Monzer to file its material first because Monzer insisted that Ms Evans had resigned.

After some procedural difficulties Monzer filed its material on 5 April 2023 and 6 April 2023. Ms Evans was then required to file her materials in reply by 21 April 2023.

Unfortunately Ms Evans has not responded to any correspondence from the Commission since attending the telephone directions hearing…

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: [2023] FWC 1099
Decision Date: 9 MAY 2023

CaseChat Overview and Summary

Georgina Evans applied to the Fair Work Commission under section 365 of the Fair Work Act 2009 (Cth) to claim she was dismissed from her employment with T. Monzer & Co Pty Ltd, a claim which the respondent denies. The Fair Work Commission was required to determine whether Ms Evans was in fact dismissed, as a jurisdictional prerequisite for the claim to proceed, and to decide whether Ms Evans had been afforded a fair opportunity to present her case. The Commission must ensure that all parties have a fair opportunity to present their case, particularly in the face of a jurisdictional objection (see Galloway v Molina (2021) 310 IR 151 at 157-158, [2021] FWCFB 5419 at [25]). This case involved consideration of procedural fairness and the Commission’s ability to make findings of fact where there has been a failure by one party to comply with procedural requirements (see Coles Supply Chain v Milford [2020] FCAFC 152, (2020) 300 IR 146 at [65]-[71]).

The court examined the evidence provided by the respondent, T. Monzer & Co Pty Ltd, which included witness statements from Mr Tarek Monzer and three other workers. All statements were consistent in their account that Ms Evans had informed Mr Monzer that she did not want to work anymore and subsequently left the workplace. Given the lack of any contrary evidence or challenge to the filed material by Ms Evans, the Deputy President concluded that Ms Evans had indeed resigned her employment. The lack of contrary evidence or challenge to the filed material by Ms Evans resulted in a determination that she had not been dismissed as per section 386 of the Act.

The Deputy President was satisfied that the procedural fairness requirements were met, as Ms Evans had been given a fair opportunity to prepare and present her case. Despite numerous attempts to contact Ms Evans and provide her with the opportunity to file evidence and submissions, she failed to respond or participate in the proceedings. Consequently, the application was dismissed under section 587 of the Act, as Ms Evans had not been dismissed and therefore her application did not comply with the Act. The Deputy President made an order dismissing the application.

Orders