Levi Moon v McMillan Shakespeare Limited - [2024] FWC 3140

[2024] FWC 3140

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Levi Moon
v

McMillan Shakespeare Limited; Maxxia Pty Ltd

(C2024/4789)

DEPUTY PRESIDENT LAKE

BRISBANE, 18 NOVEMBER 2024

Application to deal with contraventions involving dismissal – forced resignation – jurisdictional objection – no dismissal – jurisdictional objection upheld – application dismissed.

Mr Levi Moon (the Applicant) lodged a general protections application involving dismissal with the Fair Work Commission (the Commission) on 12 July 2024. The Applicant claims that adverse action was taken against him by McMillan Shakespeare Limited and Maxxia Pty Ltd (the Respondent) under ss.340 and 351 of the Fair Work Act 2009 (Cth) (the Act).

The Respondent raised a jurisdictional objection that the Applicant was not dismissed under s.386 of the Act as the Applicant resigned from his employment on 11 June 2024. The Applicant contests the objection on the basis that he was constructively dismissed and forced to resign under s.386(1)(b) of the Act.

Directions were issued and the matter was listed for hearing on 15 October 2024. The Applicant was represented by Taylor Rose, and the Respondent was represented by Rigby Cooke Lawyers.

There was no objection raised by either party regarding representation at the Hearing. Representation was granted on the basis that the matter would run efficiently given the complexity of the matter, and there would be no unfairness between the parties.

Procedural Matters

The Applicant named McMillan Shakespeare Limited as his employer in his Form F8 Application. It was uncontested that Applicant’s letter of offer of employment noted the Applicant’s employer as being Maxxia Pty Ltd (Maxxia),[1] a subsidiary of McMillan Shakespeare Limited and part of the McMillan Shakespeare Corporate group. The parties both noted Maxxia as a Respondent in their submissions. Neither party formally requested for the Respondent to be changed to Maxxia under s.586 of the Act. Maxxia is a wholly owned subsidiary of McMillan Shakespeare Limited.

I consider that in the circumstances where Maxxia is a wholly owned subsidiary of the McMillan Shakespeare Limited, the Respondent has not objected to the inclusion of Maxxia as a Second Respondent in the Applicant’s submissions, and the Respondent themselves in their submissions has referred to both companies interchangeably as being the Respondent, then it is appropriate to exercise my discretion pursuant to s.586 of the Act to amend the Form F8 to note Maxxia as a Second Respondent.

Background

The Applicant commenced full-time employment with Maxxia as a Customer Care Consultant within the Respondent’s brand, RemsServ on 5 July 2021.[2]

The Applicant is a full-time carer for his wife. Without disclosing the nature of the Applicant’s wife’s disability, I accept that her care requirements are ongoing.

Over the course of his employment, the Applicant made several requests for flexible working arrangements, the last of which was to expire on 8 July 2024.[3]

It was not contested that the Applicant is entitled as a carer to request flexible working arrangements under s.65 of the Act.

The Applicant’s…

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: [2024] FWC 3140
Decision Date: 18 NOVEMBER 2024

CaseChat Overview and Summary

Levi Moon sought relief under the Fair Work Act 2009 (Cth) for alleged adverse action leading to his dismissal by McMillan Shakespeare Limited and Maxxia Pty Ltd, with Maxxia being a wholly owned subsidiary of McMillan Shakespeare Limited. Moon claimed that he was constructively dismissed due to the Respondents' handling of his requests for flexible working arrangements, which he argued were denied on an ongoing basis or only approved for short periods. The Respondents contested that Moon was not dismissed but rather resigned voluntarily. The key legal issue was whether Moon's resignation qualified as a forced resignation under s.386(1)(b) of the Act. The court had to determine if Moon had no real choice but to resign due to the Respondents' conduct.

In considering whether Moon's resignation was forced, the court reviewed the statutory definition of dismissal and relevant case law, which requires that the employer's conduct must be such that it would, on any reasonable view, be likely to bring the employment relationship to an end. The court examined the evidence of Moon's requests for flexible working arrangements, the Respondents' responses, and the context in which Moon resigned. The court found that while Moon was frustrated by the necessity of repeatedly requesting flexible working arrangements and the short-term approvals, there was no evidence that the Respondents' conduct amounted to a forced resignation. The court held that Moon had other options, such as waiting for his request to be formally processed, and that his resignation was not compelled by the Respondents' actions. Consequently, the court dismissed Moon's application as he was not eligible to lodge an application under s.365 of the Act.

Orders