Jessica Richards v Woolworths Group Limited - [2023] FWC 1082

[2023] FWC 1082

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jessica Richards
v

Woolworths Group Limited

(U2023/1577)

DEPUTY PRESIDENT BOYCE

SYDNEY, 17 MAY 2023

Application for an unfair dismissal remedy — jurisdictional objection — whether there was a
“dismissal” within the meaning of s.386 of the Fair Work Act 2009 — Applicant resigned - Applicant not forced to resign — no dismissal – no jurisdiction to determine Applicant’s claim — application dismissed.

Introduction

On 27 February 2023, Ms Jessica Richards (Applicant) filed an unfair dismissal application (Application) with the Fair Work Commission (Commission). The Respondent to the Application is Woolworths Group Limited (Respondent).

The Respondent raises a jurisdictional objection to the Application, namely, that the Applicant was not “dismissed” by the Respondent within the meaning of s.386 of the Fair Work Act 2009 (Act). This decision concerns this jurisdictional objection.

At the hearing, the Applicant appeared for herself, and the Respondent was represented (with permission) by Ms Alice DeBoos, Partner, Kingston Reid lawyers.[1]

Evidence and submissions

The Applicant relies upon her Witness Statement dated 22 April 2023, undated response to the Witness Statement of Mr William Daly dated 17 April 2023, her email to Chambers dated 3 May 2023, and the documents attached to her (Form F2) Application.

The Respondent relies upon its Outline of Submissions dated 17 April 2023, the Witness Statement of Mr William Daly (Group Manager – Proactive Services) dated 17 April 2023, and its Submissions in Reply dated 1 May 2023.

Factual findings

On the basis of the evidence tendered by the parties and given at the hearing, I make the factual findings that follow.

The Applicant commenced casual employment with the Respondent on 18 February 2022 in the position of Store Team Member (Substantive Role) at the Woolworths Fairfield Heights Store. On 30 May 2022, the Applicant’s default location of work was changed from the Woolworths Fairfield Heights Store to the Woolworths Green Valley Store.[2]

On 5 September 2022, the Applicant commenced a temporary placement as a casual Team Leader at the Woolworths Cabramatta Store which continued until 15 January 2023.

In late December 2022 / early January 2023, the Applicant was offered the opportunity to undertake a temporary placement as a full time Team Leader at the Woolworths Emerton Store (Secondment Role), which was for the period between 16 January 2023 and 19 February 2023 inclusive. The Applicant accepted this Secondment Role via the Respondent’s electronic HR Information System.[3]

During a discussion with Mr Daly on 2 January 2023, Mr Daly’s unchallenged evidence (which I accept and find accordingly) is that it was explained to the Applicant that at the end of the Secondment Role (on 19 February 2023), the Applicant would either:
(a) Remain in the Team Leader role (i.e. the Secondment Role) on a permanent basis, provided her performance was satisfactory and she was interested in continuing in the role; or
(b) Return to…

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 1082
Decision Date: 17 MAY 2023

CaseChat Overview and Summary

The Fair Work Commission (FWC) was asked to decide whether Ms Jessica Richards (Applicant) was dismissed by Woolworths Group Limited (Respondent) within the meaning of section 386 of the Fair Work Act 2009 (FW Act). Ms Richards filed an unfair dismissal application with the Commission. The Respondent raised a jurisdictional objection, arguing that the Applicant was not dismissed as defined by section 386 of the FW Act. This decision addresses the jurisdictional objection.

The Applicant argued that she was forced to resign due to the Respondent's conduct. The Respondent, on the other hand, submitted that they did not display any intention to dismiss the Applicant and that their actions could not be interpreted as having the probable result of bringing the employment relationship to an end. The Applicant resigned of their own volition and confirmed their intention to resign after the Respondent sought clarification directly with them.

The FWC found that there was no evidence to suggest that the Respondent intended to bring the Applicant's employment to an end. The options presented to the Applicant by the Respondent were consistent with the contractual terms agreed upon between the parties. The Applicant's decision to resign was a voluntary choice made on their own, which the Respondent was entitled to accept. As a result, the Applicant was not forced to resign by the Respondent and was not "dismissed" within the meaning of section 386 of the FW Act.

In conclusion, the FWC dismissed the Applicant's Application as the Commission did not have jurisdiction to determine the Applicant's claim. This decision will be published contemporaneously with the issuance of the Order.

Orders