Geraldine Sturdy v Novacon Group Pty Ltd - [2022] FWC 3336

[2022] FWC 3336

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Geraldine Sturdy
v

Novacon Group Pty Ltd

(C2022/3429)

COMMISSIONER LEE

MELBOURNE, 20 DECEMBER 2022

Application to deal with contraventions involving dismissal – jurisdictional objection that Applicant not dismissed – determination that employment terminated on employer’s initiative – jurisdictional objection dismissed.

Introduction

This decision concerns an application made by Mrs Geraldine Sturdy to deal with a general protections dispute involving an alleged dismissal under Part 3-1 of the Fair Work Act 2009 (the Act). Mrs Sturdy contends that Novacon Group Pty Ltd (Novacon) contravened various provisions of Part 3-1 of the Act by dismissing her from her employment as a traffic controller and labourer. Novacon disputes that Mrs Sturdy was dismissed and pressed a jurisdictional objection on that basis.

The Commission generally does not have a determinative function in relation to applications brought under s.365 unless the parties agree to the Commission arbitrating the matter. Rather, the Commission’s role is to convene a conference and to issue a certificate to the Applicant, if it is satisfied that all reasonable efforts to resolve the dispute have been or are likely to be unsuccessful. However, where the Respondent denies that it dismissed the Applicant and objects to the application on this basis, the Commission is required to determine whether the Applicant was dismissed.[1]

Background

There are a number of factual contests in this matter. However, the key disputed fact is whether or not Mr Truong Do, Director of Novacon Group terminated Mrs Sturdy’s employment during a telephone call on the evening of 19 May 2022.

Mr Do provided evidence on behalf of the employer. Mrs Sturdy gave evidence on her own behalf.

The matter was listed for hearing in person on 14 November 2022. Permission for both parties to be represented by a lawyer was granted.

The Evidence

The Applicant worked as a traffic controller and labourer for the Respondent. She was engaged as a casual and worked predominantly at the Respondent’s Hampton work site under the direction of Mr Dilan Gamage, the civil manager of the Respondent. Mr Do attended the worksite from time to time to oversee the work.

The Applicant states that she worked between 40 to 50 hours per week on average, over 5 days of the week.[2]

Between 12 April 2022 and 8 May 2022, the Applicant was unavailable to work as she advised that she had a work-related injury to one of her ankles. No Workcover claim was submitted, and no workers compensation payments were received by the Applicant in respect to that injury.

On 9 May 2022 the Applicant returned to work and worked from 9 May 2022 through until 17 May 2022. It does not appear that the Applicant performed any work after 17 May 2022. The Applicant’s evidence, not disputed by Mr Do, is that she was paid weekly on Tuesdays.

The Applicant states that on 17 May 2022 at about 11:30am she telephoned Mr Do, as she was dissatisfied with…

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 3336
Decision Date: 20 DECEMBER 2022

CaseChat Overview and Summary

Geraldine Sturdy filed an application against Novacon Group Pty Ltd in the Fair Work Commission under section 365 of the Fair Work Act 2009, alleging that her employment was unfairly terminated. Novacon denied that Ms Sturdy was dismissed and raised a jurisdictional objection. The Commission had to decide whether Ms Sturdy was dismissed, and if so, whether the application should proceed to a conference for resolution. The key issue was whether Ms Sturdy's employment was terminated by Novacon during a phone call on 19 May 2022.

The Commission found Ms Sturdy to be a credible witness, preferring her evidence over that of Mr Truong Do, the Director of Novacon. Ms Sturdy's evidence was that during the phone call, Mr Do told her, "Absolutely, I'm sacking you." Mr Do denied saying this and claimed that Ms Sturdy was abusive and rude during the conversation. The Commission found Mr Do's evidence inconsistent and evasive, particularly regarding the alleged rudeness and threats from Ms Sturdy. The Commission concluded that Ms Sturdy's employment was terminated by Mr Do during the phone call, as this was a clear communication of termination. The jurisdictional objection was dismissed, and the application will proceed to a conference under section 368 of the Act.

Orders