Josie Williams v Kovac Care Pty Ltd - [2022] FWC 3308

[2022] FWC 3308

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Josie Williams
v

Kovac Care Pty Ltd

(C2022/3702)

DEPUTY PRESIDENT MASSON

MELBOURNE, 15 DECEMBER 2022

Application to deal with contraventions involving dismissal.

On the 23 June 2022, Ms Josie Williams (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 3 June 2022 by Kovac Care Pty Ltd (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.

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(1)(a) or (b).

Following allocation of the matter to my Chambers on 2 September 2022, it was listed for an initial conference on 19 September 2022. That conference and two subsequent conferences conducted on 14 October 2022 and 28 October 2022 failed to resolve the matter. Directions were subsequently issued on 28 October 2022 for the filing of material in relation to the jurisdictional objection. The hearing to deal with the jurisdictional objection was listed for 14 December 2022.

In advance of the hearing the Respondent filed material in accordance with the directions while the Applicant failed to file any material. The Applicant did however continue to communicate regularly with my Chambers regarding claims of wages and superannuation underpayment by the Respondent, matters she had ventilated during the above-referred conferences and which were unable to be resolved between the parties during the conferences.

At 12.36pm on 13 December 2022 the Applicant emailed my Chambers, again setting out various underpayment complaints and in doing so also advised that she had decided not to attend the hearing set down for 14 December 2022. No explanation as to why she had decided not to attend the hearing was provided. My Associate then responded on my behalf advising that the hearing would proceed as listed and requested confirmation from the Applicant on whether she wished to withdraw her application. The Applicant was also advised in that correspondence that if she failed to appear at the hearing there was potential for the matter to be determined in her absence.

At 1.21pm on 13 December 2022, the Applicant replied to my Associate’s email and again confirmed that she would not be attending the hearing listed for 14 December 2022. After correspondence was received from the Respondent at 3.48pm on 13 December 2022 in which concern was expressed by the Respondent regarding alleged threats made by the Applicant, my Associate again confirmed to the parties that the hearing listed for 14 December…

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 3308
Decision Date: 15 DECEMBER 2022

CaseChat Overview and Summary

Josie Williams lodged an application against Kovac Care Pty Ltd under s. 365 of the Fair Work Act 2009, asserting that her termination of employment contravened her workplace rights. Kovac Care Pty Ltd raised a jurisdictional objection, arguing that Ms Williams was not dismissed and therefore had no standing to bring the application. The central issue before the court was whether Ms Williams was dismissed within the meaning of s. 386(1) of the Act.

The court examined the evidence provided by Kovac Care Pty Ltd, including testimony from Ms Tammy Kovacevic, Director of the Respondent, and Ms Renee Cachia, a former colleague of Ms Williams. The evidence indicated that Ms Williams's behavior became increasingly erratic in May 2022, leading to complaints from both residents and staff. There were also allegations of bullying and financial coercion by Ms Williams towards Ms Cachia. On 2 June 2022, Ms Williams requested payment for her accrued annual leave, which was declined by Ms Kovacevic. The following day, Ms Williams communicated her intent to seek employment elsewhere due to her treatment by the Respondent. Ms Kovacevic accepted this as a resignation and agreed to process her pay and requested she vacate the accommodation provided by the Respondent.

The court considered the statutory framework and relevant case law, particularly focusing on the definition of "dismissal" under s. 386(1) of the Act. The court found that Ms Williams's resignation was not made in the "heat of the moment" or under duress, as evidenced by her prior unhappiness in the job and her explicit statement of intent to resign. The court concluded that Ms Williams's employment was not terminated at the initiative of the Respondent nor was she forced to resign due to the Respondent's conduct.

As a result, the court upheld the Respondent's jurisdictional objection, finding that Ms Williams was not dismissed within the meaning of s. 386(1) of the Act. Consequently, the application was dismissed. An order giving effect to this decision will be issued separately.

Orders