Liane Trainor v Wild West Pty Ltd - [2024] FWC 567

[2024] FWC 567

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Liane Trainor
v

Wild West Pty Ltd

(U2023/11194)

DEPUTY PRESIDENT O’KEEFFE

PERTH, 5 MARCH 2024

Application for an unfair dismissal remedy

On 14 November 2023, Liane Trainor (the Applicant) made an application to the Fair Work Commission (the FWC) under s.394 of the Fair Work Act 2009 (Cth) (the FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Wild West Pty Ltd (the Respondent). The Respondent objects to the FWC dealing with the application on the basis that the Applicant resigned her employment and the termination was not at the initiative of the Respondent.

Background

The Applicant was employed by the Respondent at its recycling facility in Mandurah, Western Australia, and commenced this employment on 21 May 2021. The Applicant was employed on a casual basis and typically worked five days a week from 9am to 2pm. On 25 October 2023, it appears the Applicant had a difficult discussion regarding her work duties with Ms Suezette West, a director of the Respondent. As a result of this discussion, the Applicant left work early having received permission to do so from Mr Terry West, the other director of the Respondent. When the Applicant returned for her next shift there was another discussion with Ms West. The parties are in dispute about the content of this discussion and its implications. Notwithstanding this, the Applicant left the Respondent’s premises after this discussion and did not return.

Permission to appear

Both the Applicant and the Respondent sought to be represented before the Commission. The Respondent made relevant submissions regarding s596(2)(a) and the efficient conduct of the hearing, and also s596(2)(b) with respect to the Respondent lacking any experience in Commission matters. As I need only find one of the circumstances in s596(2) to be applicable, I was persuaded that the Respondent did not have the necessary experience or capacity to effectively represent itself and as such I granted permission for the Respondent to be represented.

The Applicant made relevant submissions addressing s596(2)(a) and s596(2)(b). From the submissions addressing s596(2)(b) I was persuaded that the Applicant would not be able to represent herself effectively and as such I granted permission for the Applicant to be represented.

Witnesses

The Applicant gave evidence on her own behalf.

The following witnesses gave evidence on behalf of the Respondent:

· Ms Suezette West (Ms West), director of the Respondent
· Mr Terry West (Mr West), director of the Respondent

Has the Applicant been dismissed?

A threshold issue to determine is whether the Applicant has been dismissed from their employment.

Section 386(1) of the FW Act provides that the Applicant has been dismissed if:

(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or

(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged…

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 567
Decision Date: 5 MARCH 2024

CaseChat Overview and Summary

Liane Trainor lodged an unfair dismissal claim against Wild West Pty Ltd before the Fair Work Commission, alleging she was dismissed from her casual employment at the Respondent’s recycling facility. The Respondent objected to the FWC's jurisdiction, arguing that Trainor had resigned and that her dismissal was not at its initiative. The Applicant, Trainor, claimed she was subjected to aggressive conduct by Ms Suezette West, a director of the Respondent, on 25 October 2023, leading her to leave work early. When Trainor returned on 27 October 2023, Ms West allegedly told her she no longer worked there, which Trainor interpreted as a termination of her employment. The key issue was whether Trainor was dismissed by the Respondent or whether she resigned.

The Commission considered the evidence, including Trainor’s testimony, Ms West’s and Mr Terry West’s statements, and a recording of the interaction between Trainor and Ms West on 27 October 2023. The Commission found that the interaction between Trainor and Ms West on 27 October 2023, where Ms West offered Trainor to work for two more days, indicated that Trainor’s employment had not been terminated but was instead being offered a chance to continue working. Despite this, Trainor chose to leave the workplace, which the Commission found constituted a resignation. The Commission concluded that Trainor had resigned rather than being dismissed by the Respondent. As a result, the FWC did not have jurisdiction to deal with Trainor’s unfair dismissal claim, and the application was dismissed.

The Court's decision underscores the importance of clear communication in workplace disputes and the consequences of an employee's decision to resign in response to workplace tensions.

Orders