Lily Hart v Intellisoftware Pty Ltd - [2024] FWC 2490

[2024] FWC 2490

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Lily Hart
v

Intellisoftware Pty Ltd

(C2024/4250)

DEPUTY PRESIDENT EASTON

SYDNEY, 13 SEPTEMBER 2024

Application to deal with contraventions involving dismissal – jurisdictional objection – is the applicant a person who has been dismissed – resignation – factual dispute about a crucial conversation – impending performance review – applicant told “I want to give you the opportunity to resign … this is your last day” – no effective or real choice but to resign – applicant was dismissed.

On 21 June 2024 Ms Lily Hart made an application to the Fair Work Commission under s.365 of the Fair Work Act 2009 (Cth). Ms Hart claims that she was dismissed from her employment with Intellisoftware Pty Ltd and that the dismissal contravened the general protection provisions of the Act.

Intellisoftware maintains that Ms Hart resigned her employment and was not ever dismissed.

The Commission’s Jurisdiction

The Fair Work Commission can deal with applications under s.365 of the Act by way of conciliation or mediation under s.368. If the Commission 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 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 (Ward v St Catherine’s School [2016] FCA 790 at [3]).

The Full Court in Coles Supply Chain v Milford [2020] FCAFC 152 at [51], (2020) 300 IR 146 (Milford) found that the FWC’s power to deal with a dispute under s.368 is only enlivened if an application is properly made under s.365. When a jurisdictional objection is raised the FWC must determine whether the application was properly made, which might include determining whether an applicant was actually dismissed from their employment.

The Full Bench in Lipa Pharmaceuticals v Jarouche[2023] FWCFB 101 at [23], (2023) 324 IR 375 at 382-3 observed by way of obiter:
“As earlier stated, the Commission conducted a conciliation conference in respect of Dr Jarouche’s application prior to the determination of Lipa’s jurisdictional objection, with Lipa’s consent. This involved the exercise of the Commission’s functions and powers under s 368(1). This should not have occurred since it was inconsistent with the Full Court’s command in Milford as set out in 4 above. Where the respondent to a s 365 application contends, in its response to the application or otherwise, that the application was not validly made because the applicant was not dismissed, this must be determined prior to the Commission “dealing” with the dispute under s 368 including by conducting a conciliation conference.”

“A person who has been dismissed”

Ms Hart only has capacity to make a claim if she is “a person who has been dismissed” (per s.365(a)). “Dismissed” is defined in s.12 of the Act by reference to s.386. Section 386 is in…

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 2490
Decision Date: 13 SEPTEMBER 2024

CaseChat Overview and Summary

The case of Lily Hart v Intellisoftware Pty Ltd before the Fair Work Commission (FWC) concerned a claim by Ms Hart that she was dismissed from her employment with Intellisoftware, and that the dismissal contravened the general protection provisions of the Fair Work Act 2009. Intellisoftware contended that Ms Hart had resigned and was not dismissed. The key legal issues before the FWC were whether Ms Hart was "a person who has been dismissed" within the meaning of s.365 of the Act and whether the application was properly made under s.365. The FWC had to determine if Ms Hart's resignation was forced by the employer's conduct, rendering it a dismissal, or if she resigned of her own volition.

The FWC found that the conversation between Ms Hart and Mr Bassam, Intellisoftware's CEO, was pivotal. Ms Hart claimed that Mr Bassam told her that "this is your last day" and offered her the opportunity to resign, which she accepted. Mr Bassam, however, denied these statements and claimed that he merely informed her about an upcoming performance review. The FWC preferred Ms Hart's account of the conversation, finding it more credible based on the surrounding circumstances and the evidence presented, including the testimonies of Mr Grant and the content of the text exchange between Ms Hart and Mr Grant. The FWC concluded that Mr Bassam's conduct left Ms Hart with no real choice but to resign, satisfying the criteria for a dismissal under s.386(1)(b) of the Act.

Based on this finding, the FWC determined that Ms Hart was indeed "a person who has been dismissed" and that her application was properly made under s.365 of the Act. Consequently, the FWC issued a certificate under s.368(3), enabling Ms Hart to proceed with her claim of unfair dismissal. A conference was scheduled to deal with Ms Hart's claim against Intellisoftware.

Orders