Kiran Donaldson v Baytech Industrial Pty Ltd
[2019] FWC 1873
•26 MARCH 2019
| [2019] FWC 1873 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kiran Donaldson
v
Baytech Industrial Pty Ltd
(U2018/12913)
DEPUTY PRESIDENT CLANCY | MELBOURNE, 26 MARCH 2019 |
Application for an unfair dismissal remedy.
[1] On 13 December 2018, Ms Kiran Donaldson made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).
[2] In her Form F2 – Unfair Dismissal Application (Form F2), Ms Donaldson stated that she commenced employment with Baytech Industrial Pty Ltd (Baytech) in December 2015 and that her employment was terminated on 22 November 2018. As to the reason for the dismissal, Ms Donaldson stated in the Form F2:
“Voluntarily left the premises of GlaxoSmithKline due to gender/age/sexual orientation discrimination claims, favouritism, poor training and Casual Training Rosters given to Baytech Industrial that are not up to date.
There has been no dismissal letters or separation certificate. I am still employed with Baytech Industrial.”
[3] On 9 January 2019, Baytech filed its Form F3 – Employer response to unfair dismissal application containing a jurisdictional objection on the basis that Ms Donaldson was not dismissed. It further stated that Ms Donaldson is employed by Baytech as a casual on-hired worker who was on-hired as a casual Steriles Production worker at GlaxoSmithKline (GSK) from 23 November 2015 until 22 November 2018, when she decided not to return to work despite a standing offer of employment. Baytech asserted that Ms Donaldson remained employed and continued to be offered opportunities to continue to work.
[4] The matter proceeded to conciliation on 24 January 2019, but did not resolve.
[5] A Notice of Listing was sent to the parties on 30 January 2019 scheduling the matter for a Jurisdiction (No Dismissal) and Arbitration Conference/Hearing on 8-9 April 2019. Directions were also issued, requiring Baytech to file material in support of its jurisdictional objection by 11 February 2019, Ms Donaldson to file material responding to Baytech’s jurisdictional objection and supporting her application by 18 February 2019, and Baytech to file any material in reply by 25 February 2019.
[6] Baytech filed its material on 11 February 2019 in compliance with the Directions. It submitted that as Ms Donaldson cannot satisfy s.385(a) of the Act, her application must fail. Baytech’s material also referred to Ms Donaldson’s Form F2 to support its submission that there was no dispute that Ms Donaldson had not been terminated. Further, Baytech submitted that as Ms Donaldson made her application “knowing full well that no termination has occurred”, her application had been made frivolously and/or vexatiously and that on this basis, it submitted the Commission should dismiss the application pursuant to s.587(1) of the Act.
[7] On 17 February 2019, Ms Donaldson filed an Applicant Outline of Argument, an Applicant Outline of Submissions – Objections and nine attachments in accordance with the Directions. A further Statement of Evidence was received from Ms Donaldson on 19 February 2019.
Ms Donaldson’s material
[8] In her Applicant Outline of Argument, Ms Donaldson described being in fear of losing wages and employment if she spoke up about “breaches of GSK policies(Attachment I), discrimination, harassment, unfair treatment towards casual and a plethora of training/product quality concerns in GSK”.
[9] Ms Donaldson also provided a brief account of the events on 22 November 2018, the date on which she asserts in her Form F2 that her employment was terminated, where she advised Baytech she was leaving the workplace due to discrimination and was subsequently asked by Baytech to return to work as “it would be in good stead”.
[10] Much of Ms Donaldson’s Applicant Outline of Argument details her concerns about her work at GSK and her criticisms about the process that Baytech engaged in to address those concerns.
[11] At paragraph 1.28, Ms Donaldson stated:
“Ms Donaldson decided to file for unfair dismissal because she is in ‘limbo’. Ms Donaldson could not resign because the process remains ongoing. Ms Donaldson could not resign whilst waiting for a fair and impartial investigation and a contribution to that matter. Ms Donaldson is waiting for any information regarding any changes, outcomes and/or solutions regarding any investigation, Ms Donaldson could not resign due to the Human Rights Commission application standard of remaining currently employed.”
[12] In her Applicant Outline of Submissions – Objections, Ms Donaldson described in further detail the events on 22 November 2018 as well as the subsequent chronology of events that followed.
[13] On page 6 of this document, Ms Donaldson stated:
“1. To this Day, Ms Donaldson has not been working since the incident on the 22nd November 2018.
2. Ms Donaldson has also not received an updated Cover letter or Resume from Ms Baronessa.
3. Ms Donaldson has been left without any support which is known by Baytech Industrial Vic Pty Ltd.
4. Ms Donaldson has not been informed of any investigation underway and/or any results of any investigations or any proof that an investigation took place.
5. Ms Donaldson has been waiting for Baytech Industrial to conduct a full investigation into Ms Donaldsons allegations at GSK. Ms Donaldson is still waiting on any information.
6. Ms Donaldson has not resigned due to waiting in the hope that Ms Jo Baronessa will find suitable employment in another workplace as stated. Ms Donaldson has not resigned also due to waiting for the results of any investigation outcome and fearful that if she does resign, all of this will be swept under the carpet. The Human Rights Commissions policy to make an application only if still currently employed was also an option for Ms Donaldson given the severity of the complaints.
7. As a result of not resigning, Ms Donaldson has been illegible to seek any financial assistance during this time as she does not have a separation certificate.
8. Ms Donaldson has been a Casual worker for nearly 3 years with a great work history and was always afraid of losing her job for speaking up. Ms Donaldson has now spoken up. Ms Donaldson has now lost her job, her income and her career.
9. Ms Donaldson has lost References for jobs in the future.
10. Ms Donaldson has not received any assistance from Baytech Industrial since the day she left the GlaxoSmithKline Premises.
11. Ms Donaldson was left without any support over the Christmas Period for 2018.”
[14] Ms Donaldson’s Statement of Evidence did not provide any new evidence outside that submitted in the Applicant Outline of Argument and Applicant Outline of Submissions – Objections.
Baytech’s s.587 application
[15] On 22 February 2019, Baytech filed a Form F1 Application seeking to have Ms Donaldson’s matter dismissed under s.587 of the Act on the basis that the application had been made frivolously and/or vexatiously, and that the application had no reasonable prospects of success.
[16] Baytech submitted the following grounds to support its application:
• Ms Donaldson cannot satisfy “the most basic requirements under s.385 of the Act” and has not addressed the “issue of her not being terminated at the employer’s initiative (s.386)”;
• Ms Donaldson cites that her termination has occurred due to a number of infringements under the protected attributes, but has chosen to make her application pursuant to s.394 and not s.365 of the Act;
• Ms Donaldson has not addressed how she was dismissed pursuant to s.386 of the Act nor how the dismissal could be considered harsh, unjust or unreasonable pursuant to s.387 of the Act;
• Ms Donaldson has not addressed Baytech’s jurisdictional objection of “No Dismissal” as to do so would render her application “so clearly untenable” in circumstances where she has “already conceded that she was not dismissed as per her F2, nor has she resigned”;
• Ms Donaldson’s Form F2 states “I am still employed with Baytech Industrial” and her material filed on 17 February 2019 also states that she has not resigned; and
• The “contradictory line of thinking” supports the contention that the application has been made vexatiously.
Ms Donaldson’s response to Baytech’s s.587 application
[17] On 13 March 2019, I caused correspondence to be emailed to Ms Donaldson directing her to file a response to Baytech’s s.587 application by no later than 4:00PM on 21 March 2019.
[18] Ms Donaldson filed her response on 20 March 2019.
[19] Of note, Ms Donaldson submitted:
• “Ms Donaldson was forced to terminate her ongoing (ranging from 36+ hours a week regularly) position with GlaxoSmithKline on the 22nd November 2018 because of the continual conduct engaged by GlaxoSmithKline management.”
• “Ms Donaldson has not worked at all since the 22nd November 2018. Baytech Industrial Pty Ltd offered one unsuitable position since this date.”
• “On the 26th November, Ms Donaldson informed Baytech Industrial Pty Ltd she will not be returning to GlaxoSmithKline due to fear of victimization and the conduct of GlaxoSmithKline management which was harsh, unjust and unreasonable.”
• “Ms Donaldson contacted the Human Rights Commission to keep her options open regarding this matter. Ms Donaldson was advised to remain ‘employed’ which is a requirement to submitting a complaint with the Commission.”
[20] The remainder of Ms Donaldson’s response addressed the alleged discrimination and breaches engaged in by both GSK and Baytech. There was otherwise no submission addressing the question as to whether Ms Donaldson was still employed.
Consideration
[21] Section 385 of the Act states:
“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
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[22] The meaning of “dismissed” is defined in s.386 of the Act:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
[23] Section 587(1) of the Act provides:
“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.”
[24] Having regard to Ms Donaldson’s Form F2 and material filed in accordance with the Directions, it appears that she does not take issue with the assertion Baytech has made that the employment relationship has not been terminated.
[25] On that basis, I am satisfied that Ms Donaldson has not been dismissed within the meaning of s.386 of the Act. As such, the condition in s.385(a) has not been satisfied.
[26] Clearly, there are matters that have given rise to this dispute in the employment relationship and I encourage the parties to work together in resolving these.
[27] However, in the circumstances of this matter, I consider that Ms Donaldson’s application has no reasonable prospects of success and dismiss her application pursuant to s.587(1)(c).
[28] An Order to this effect will be issued shortly.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR706087>
0
0
0