Georgina Evans v T. Monzer & Co Pty Ltd
[2023] FWC 1099
•9 MAY 2023
| [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 and has not filed any materials in response to Monzer’s materials. Quite possibly she has decided to abandon her claim, but that is not certain because Ms Evans has simply stopped communicating with the Commission.
A further Telephone Directions Hearing took place on 28 April 2023. Ms Evans did not attend and did not respond to the telephone calls, emails and messages via SMS sent to her.
On 28 April 2023 the following self-explanatory email was sent to Ms Evans:
“Dear Ms Evans,
On 23 February 2023 the Deputy President made the attached directions in relation to your general protections claim and the jurisdictional objection raised by the Respondent.
Your application is currently listed for hearing on 8 May 2023 and you were required to file evidence and submissions in relation to whether you were dismissed by no later than 4:00pm on 21 April 2023.
You have not filed any material and you have not responded to the numerous emails and SMS sent to you by the Commission.
If you do not file your evidence and submissions by 4pm on Tuesday 2 May 2023 then the hearing on 8 May 2023 will be cancelled and the Deputy President will make a decision about whether you were dismissed based only on the evidence filed by the Respondent.”
Ms Evans did not respond to this email and did not file any material. As foreshadowed in the email, the hearing scheduled for 8 May 2023 was vacated.
The hearing was vacated because it was not satisfactory to simply let the proceedings continue on to the scheduled hearing date in case Ms Evans showed up. Monzer operates a retail chicken shop and it was not reasonable to expect Monzer to prepare for the hearing and arrange for its witnesses to attend, particularly given the likelihood that Ms Evans had abandoned her application. The Commission must perform its functions and exercise its powers in a manner that is fair and just and also quick, informal and avoids unnecessary technicalities (per s.577).
I am comfortable that Ms Evans has been given a fair opportunity to prepare and present her case, specifically her case in response to the jurisdictional objection raised by Monzer that she was not in fact “a person who was dismissed” (see Galloway v Molina (2021) 310 IR 151 at 157-158, [2021] FWCFB 5419 at [25]).
Monzer filed witness statements from its principal, Mr Tarek Monzer, as well as three other workers: Layal Hanna,Jana Monzer, and Carene Joy.
The evidence from each person is brief but consistent. All four people say that Ms Evans attended the workplace on 26 January 2023, spoke to Mr Monzer and told him that she did not want to work anymore, and then left straight away.
Mr Monzer’s statement describes his conversation with Ms Evans, Jana Monzer, Layal Hanna and Carene Joy all say they heard the conversation. Ms Monzer said she remembers the day clearly because “Tarek was stressed out because there was no one to cover her shift.” Ms Hanna said “we was all surprised because she was supposed to work that night and we stayed covering her shift that Thursday and we washed all the dishes.” Ms Joy said she “vividly remember[ed] that Thursday night because we were supposed to finish at 9pm but we needed to wash the dishes to fill-in Georgina’s job… we stayed until around 10pm.”
As outlined above, there is no filed statements or materials that question or contradict these witness statements. By her inactivity Ms Evans has forgone her opportunity to challenge Monzer’s evidence at a hearing.
On the material available to me the only conclusion to be drawn is that Ms Evans resigned her employment on 26 January 2023. There is no material upon which it could be said that the resignation was given in the “heat of the moment” or when Ms Evans was in a state of emotional stress or mental confusion such that she could not reasonably be understood to be conveying a real intention to resign. Similarly there is no material to suggest that Monzer engaged in conduct with the intention of bringing the employment to an end or conduct such that Ms Evans had no effective or real choice but to resign (see Bupa Aged Care Australia Pty Ltd v Tavassoli (2017) 271 IR 245 at 268-9, [2017] FWCFB 3941 at [47]-[48]).
The only available course of action is to dismiss the application under s.587 of the Act in the circumstances. I am satisfied that Ms Evans was not dismissed and therefore Ms Evans’s application was not made in accordance with the Act (per s.587(1)(a)).
Accordingly, I will make an order dismissing the application (PR761755).
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
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