Justin Kritzinger v WEG Australia Pty Ltd - [2023] FWC 3396

[2023] FWC 3396

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Justin Kritzinger
v

WEG Australia Pty Ltd

(C2023/6898)

DEPUTY PRESIDENT BEAUMONT

PERTH, 19 DECEMBER 2023

Application to deal with contraventions involving dismissal

Dispute and outcome

Mr Justin Kritzinger (the Applicant) applied under s 365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a general protections dispute involving dismissal. The Applicant submitted that WEG Australia Pty Ltd (the Respondent) contravened one or more of the general protections provisions under the Act.

Whilst the Applicant concedes he resigned on 27 October 2023, his argument is that the actions of the Respondent during his employment, particularly the exploitation of his visa status, persistent bullying, discrimination, and victimisation, left him with no alternative but to resign. It is on that basis that the Applicant contends he was dismissed.

The Respondent objected to the application submitting the Applicant voluntarily resigned and was therefore not dismissed within the meaning of s 386 of the Act. That objection has implications for the application on foot because it is accepted that a person must have been dismissed to be entitled to make a general protections dismissal dispute application.[1] Section 365 relevantly provides:

365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.

Where there is a dispute about whether a person was dismissed, the Commission is obliged to determine that point before exercising its powers under s 368 of the Act to, for example, conduct a conference.[2] Therefore, the discrete issue for determination is whether the Applicant was ‘dismissed’ from his employment within the meaning of s 386(1)(b) of the Act. That is, did the Applicant resign from his employment because he was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.

Shortly stated, the Applicant resigned of his own accord. He was not forced to resign because of the conduct of the Respondent, nor, as far as it is relevant, was he dismissed on the initiative of the Respondent. The Respondent’s jurisdictional objection is upheld, and the Applicant’s application under s 365 of the Act is therefore dismissed.

For the sake of fulsomeness, it is noted that the Applicant did not contend that his employment had been terminated at the initiative of the Respondent (s 386(1)(a) of the Act).

Background

The background to this matter was provided in the form of the Applicant’s written statement in which he had conflated submissions with evidence, in addition to him having provided supporting documents. The Respondent relied upon the written statements of Ms Demi Capaul, HR Advisor, and Mr Kirk Moss, WA…

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 3396
Decision Date: 19 DECEMBER 2023

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by Justin Kritzinger (the Applicant) under s 365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a general protections dispute involving dismissal. The Applicant contended that WEG Australia Pty Ltd (the Respondent) contravened one or more of the general protections provisions under the Act. The Applicant submitted that he resigned on 27 October 2023, but that the actions of the Respondent during his employment, particularly the exploitation of his visa status, persistent bullying, discrimination, and victimisation, left him with no alternative but to resign. It is on that basis that the Applicant contends he was dismissed. The Respondent objected to the application submitting the Applicant voluntarily resigned and was therefore not dismissed within the meaning of s 386 of the Act. The discrete issue for determination was whether the Applicant was ‘dismissed’ from his employment within the meaning of s 386(1)(b) of the Act. The Fair Work Commission found that the Applicant resigned of his own accord. He was not forced to resign because of the conduct of the Respondent, nor, as far as it is relevant, was he dismissed on the initiative of the Respondent. The Respondent’s jurisdictional objection is upheld, and the Applicant’s application under s 365 of the Act is therefore dismissed.

Orders