Kane Davy v O'Connor Engine Services Pty Ltd - [2021] FWC 6697

[2021] FWC 6697

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Kane Davy
v
O’Connor Engine Services Pty Ltd
(C2021/4539)

DEPUTY PRESIDENT EASTON

SYDNEY, 24 DECEMBER 2021

Application to deal with contraventions involving dismissal - jurisdictional objection - resignation - no dismissal found - application dismissed.

Overview

[1] Mr Kane Davy claims that he was dismissed from his employment with O'Connor Engine Services Pty Ltd on 14 July 2021, and that the dismissal contravened the general protection provisions of the Fair Work Act 2009 (Cth). The Respondent claims that there was no dismissal on that day because Mr Davy had already resigned his employment one week earlier.

[2] For the reasons that follow I find that Mr Davy is not “a person who has been dismissed” and that his application was not properly made.

The Commission’s Jurisdiction

[3] The FWC can deal with applications under s.365 of the Fair Work Act 2009 (“the FW Act”) by way of conciliation or mediation under s.368. If the FWC is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful it can issue a certificate under s.368(3). Section 370 imposes a substantial restriction 1 upon applicants by preventing a general protections court application being made unless the FWC has issued a certificate under s 368(3)(a) in relation to the dispute.

[4] The Full Court in Coles Supply Chain v Milford (2020) 300 IR 146, [2020] FCAFC 152 (“Milford”) made the following relevant observations about the FWC’s capacity to deal with applications under s.365 and antecedent disputes about dismissal:

a) The FWC’s non-determinative powers to deal with a dispute under s.368 are only enlivened if an application is properly made under s.365. The proper making of an application under s.365 is an essential precondition to the FWC’s authority to perform its functions under s.368 (at [51]).

b) a dispute about whether a person has been dismissed raises an antecedent issue going to the existence of the FWC’s authority to compel an employer to participate in its conciliation processes (at [65]).

c) it is open for a respondent to assert that there has been no dismissal, which gives rise to a dispute on that question that falls to be determined under s.365 (at [67]).

d) that dispute must be resolved before the FWC’s powers under s.368 can be exercised at all (at [67]).

e) the FWC is entitled to determine the limits of its authority to deal with a dispute under s.368, although it has no authority to conclusively determine those limits (at [43]).

f) in so determining the limits of its authority the FWC may determination matters of fact (at [71]).

g) the Federal Court or the Federal Circuit Court has the power to judicially determine whether a person is entitled to make an application to the FWC (at [74]). The FW Act establishes alternative pathways for an applicant and prospective litigant and a court might decline to recognise an “application”…

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: [2021] FWC 6697
Decision Date: 24 DECEMBER 2021

CaseChat Overview and Summary

In the case of Kane Davy v O'Connor Engine Services Pty Ltd, the applicant, Mr. Davy, sought to address contraventions related to his dismissal, which he claimed occurred under the Fair Work Act 2009. The respondent, O'Connor Engine Services Pty Ltd, contested the applicant's claims, arguing that there was no dismissal and that Mr. Davy had, in fact, resigned. The Fair Work Commission was the tribunal before which this dispute was heard.

The central legal issues for the court to determine were whether Mr. Davy had been unfairly dismissed and whether the Commission had jurisdiction to hear the matter. The respondent raised a jurisdictional objection, asserting that since Mr. Davy had resigned, there was no dismissal to which the provisions of the Fair Work Act applied. The court needed to assess whether the resignation was genuinely voluntary or if it resulted from pressure or coercion that could be considered a dismissal.

The Commission examined the evidence and found that Mr. Davy's resignation was not the result of any improper conduct or pressure from the respondent. The evidence indicated that Mr. Davy had made the decision to resign on his own accord. As such, the Commission concluded that there was no dismissal under the Fair Work Act, and it dismissed the application for contraventions involving dismissal. The court held that since there was no dismissal, it lacked the jurisdiction to proceed with the matter. Consequently, the application was dismissed.

Orders