Kyungin Kim v CJ Onetree Pty Ltd - [2023] FWC 1570

[2023] FWC 1570

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Kyungin Kim
v

CJ Onetree Pty Ltd

(C2023/1719)

DEPUTY PRESIDENT BEAUMONT

PERTH, 3 JULY 2023

Application to deal with contraventions involving dismissal

Dispute

In July 2022, CJ Onetree Pty Ltd (the Respondent) employed Ms Kyungin Kim (the Applicant) as a hairdresser. The Applicant reported to Ms You Joung Choi (Director Choi) who was her direct manager and was also a director of the Respondent. During her employment, the Applicant was granted a Subclass 482 (Temporary Skill Shortage) visa due to the Respondent’s nomination of her in the occupation of hairdresser. From all accounts, the Applicant was grateful to have received the Respondent’s support as she saw it as a pathway to permanent residency in Australia. Come early March 2023, the Applicant enquired with Director Choi about taking personal leave as she felt unwell. After a series of text messages, the Applicant discerned that Director Choi had informed her to the effect that she was unable to provide anything and to look for a new employer. The Applicant says she felt obliged to comply with Director Choi’s direction, noting that she never intended to imply or suggest she wished to terminate her employment. The Applicant states that the termination of her employment was not by mutual agreement as contended by the Respondent, and she was in fact dismissed as that term is understood in both s 386(1)(a) and (b) of the Fair Work Act 2009 (Cth) (the Act).

The Respondent has objected to the general protections application on the ground that the Applicant was not dismissed within the meaning of s 386 the Act. The Respondent argues that the relationship between the Applicant and the Respondent deteriorated due to the Applicant’s behaviour in violation of the terms of the employment contract between them, and that the provision of a termination notice on 8 March 2023 was a result of a mutual agreement between the parties and had been provided in accordance with contractual arrangements.

The Respondent’s 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.[2] Therefore, the discrete issue for determination is whether the Applicant was ‘dismissed’ from her employment within the meaning of ss 12, 386(1)(a) and/or (b) of the Act.

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 1570
Decision Date: 3 JULY 2023

CaseChat Overview and Summary

Kyungin Kim, a hairdresser, filed a complaint with the Fair Work Commission (FWC) against CJ Onetree Pty Ltd, her employer, alleging she was dismissed without justification. The Respondent argued that the termination of Ms Kim's employment was a mutual agreement resulting from her unsatisfactory performance and conduct. The central issue for the Deputy President to determine was whether Ms Kim was dismissed within the meaning of sections 12, 386(1)(a), and/or (b) of the Fair Work Act 2009 (Cth). The Deputy President found that the termination of Ms Kim's employment was at the initiative of the Respondent and not a mutual agreement, and that she was, therefore, dismissed. The Deputy President concluded that the Applicant’s application under s 365 of the Act is within jurisdiction and that being so, and as the Applicant’s application was made within 21 days of the dismissal taking effect, the Commission is required to further deal with the matter. It will do so by holding a conference pursuant to s 368(2) of the Act, with a notice of listing being issued shortly.

Orders