DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Julie Hattingh
v
Compass Group
(U2021/893)

COMMISSIONER SPENCER

BRISBANE, 5 JULY 2021

Application for an unfair dismissal remedy - jurisdictional objection - whether termination at the initiative of the employer – resignation – application dismissed.

INTRODUCTION

[1] Ms Julie Hattingh (the Applicant) made an Application (the Application) with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant was employed by Compass Group (the Respondent), in the role of ‘Admin ES5’ from 9 December 2019 until 19 January 2021.

[2] The Respondent in this matter made a jurisdictional objection that the Applicant was not dismissed at the initiative of the employer, but resigned from her employment. Annexed to the Form F2, lodged by the Applicant, marked ‘Exhibit M _Julie Hattingh - resignation 19.01.21’ was a handwritten note which stated:

“Julie Hattingh

19/1/21

I hereby resign for my position as Admin ES5.

Effective Immediately

[signature]”

[3] The Applicant claimed that the resignation on 19 January 2021 was made “in the heat of the moment”, after the employer engaged in unreasonable behaviour, by subjecting her to a disciplinary meeting, which she claimed was “devoid of procedural fairness.” Further, the Applicant stated that the resignation:

“constitutes a constructive dismissal because the Supervisor unreasonably took advantage of my fragile upset state of mind by aiding and abetting by providing me with a scrap piece of paper and to have me write out my resignation and accept it forthwith immediately in a cunning Machiavellian harsh, unjust and unfair manner”. 1 The Respondent emphatically denied this; and argued that the evidence demonstrated otherwise.

[4] The following matters, are not in contention between the parties:

• The Respondent is a National System Employer. 2

• The Applicant was an employee of the Respondent. 3

• The Respondent is not a Small Business Employer. 4

• The Applicant has served the minimum employment period. 5

• The ESS Remote – Queensland and Northern Territory) Enterprise Agreement 2017 applied to the Applicant’s employment, and the sum of her annual earnings was less than the high-income threshold. 6

• The matter does not concern a redundancy. 7

• The Application was filed within 21 days of the Applicant’s resignation of employment with the Respondent. 8

[5] Whilst not all the submissions and evidence are referred to in this decision, all of such have been considered.

RELEVANT STATUTORY PROVISIONS

[6] The statutory provisions relevant to the consideration as to whether a dismissal had occurred:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy…”

“386 Meaning of dismissed

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.

Continue reading Julie Hattingh v Compass Group

Details

AGLC: Julie Hattingh v Compass Group [2021] FWC 1564
Case: [2021] FWC 1564
Decision Date: 5 JULY 2021

CaseChat Overview and Summary

Julie Hattingh, a former employee, brought a claim against her former employer, Compass Group, seeking an unfair dismissal remedy. The case was heard in the Federal Circuit and Family Court of Australia. The primary issue before the court was whether the termination of Ms. Hattingh's employment was initiated by the employer or if it resulted from her resignation. This distinction is crucial as it determines the applicability of the unfair dismissal provisions under the Fair Work Act 2009.

The court examined the facts and the circumstances surrounding the termination of Ms. Hattingh's employment. It considered whether the decision to terminate the employment was made by Compass Group or if Ms. Hattingh had genuinely resigned. The evidence presented included the terms of the employment contract, communications between the parties, and Ms. Hattingh's version of events. The court needed to determine if there was a clear employer-initiated termination that would warrant a remedy under the Act.

In its reasoning, the court found that the termination of Ms. Hattingh's employment was not at the initiative of Compass Group but rather resulted from her resignation. The court relied on the evidence presented, including Ms. Hattingh's own admissions and the circumstances surrounding the resignation. As a result, the court concluded that the provisions for unfair dismissal did not apply, and the application was dismissed. The court's decision hinged on the clear evidence that the termination was not employer-initiated, thus falling outside the scope of unfair dismissal remedies.

Orders