Maddison Noble v Smiling Samoyed Pty Ltd - [2023] FWC 941

[2023] FWC 941

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Maddison Noble
v

Smiling Samoyed Pty Ltd

(U2022/12078)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 24 APRIL 2023

Application for an unfair dismissal remedy – brewer – workplace bullying – loss of confidence in employer response – resignation – whether resignation forced – no dismissal – application dismissed

On 21 December 2022 Maddison Noble (the applicant or Ms Noble) applied to the Commission under s 394 of the Fair Work Act 2009 (Cth) (the FW Act) for an unfair dismissal remedy against Smiling Samoyed Pty Ltd (Smiling Samoyed, the respondent or the employer).

Ms Noble claims that she was dismissed within the meaning of the FW Act on 12 December 2022 and that her dismissal was unfair. She seeks compensation.

Ms Noble’s application is premised on the proposition that she was forced to resign as a result of the respondent’s handling of a workplace bullying incident by another employee towards her.

Smiling Samoyed oppose the application and raise a jurisdictional objection. It says that Ms Noble was not dismissed but chose to resign.

Conciliation was conducted on 23 January 2023. The matter did not resolve.

Permission was granted for Ms Noble to be represented.[1] The employer was self-represented; by a co-owner, Ms Henning.

On 31 January 2023 and for reasons published on 2 February 2023 I dismissed an application by the employer to summarily strike-out the application on the ground of having no reasonable prospects of success.[2]

I issued directions on 31 January 2023.

Materials were filed by Ms Noble and Smiling Samoyed including CCTV footage of the workplace incident (vision only; not audio).[3]

I heard all matters (jurisdiction, merit and remedy) by video on 22 and 27 March 2023.

Evidence

I received evidence (oral and written) from five persons:

· Maddison Noble (applicant);[4]

· Simone Andrews (psychologist);[5]

· Rhiannon Pulford (former employee);[6]

· Katharine Terrel Henning (co-owner and Pack Leader);[7] and

· Simon Campbell Dunstone (co-owner and Head Brewer).[8]

Some facts are in dispute. In that respect, issues of credit arise.

All witnesses gave evidence conscientiously. None were evasive or lacking credit. The factual differences largely concern matters of detail where evidence was given three months after relevant events. In that context, differences in recall on detail is not unsurprising.

Ms Henning, who was subject to lengthy cross examination, was in particular an impressive witness. Her witness statements were detailed though certain aspects that contained hearsay were struck-out or are given little probative weight. That aside, she displayed impressive recall. Her evidence under cross examination remained consistent and, aside from a few concessions appropriately made, was resolute and unwavering.

Ms Noble was also clear and direct though somewhat stilted. She too made appropriate concessions. Whilst generally confident and consistent, her recall occasionally wavered but not in a manner that rendered her evidence unreliable.

Mr Dunstone’s evidence, which was narrower in scope, was credible and largely uncontroversial.

To the extent required, and without necessarily preferring the evidence of Ms Henning…

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 941
Decision Date: 24 APRIL 2023

CaseChat Overview and Summary

The case of Maddison Noble v Smiling Samoyed Pty Ltd dealt with an application for unfair dismissal by Maddison Noble against her employer, Smiling Samoyed Pty Ltd. Noble claimed that she was forced to resign due to workplace bullying and the employer's inadequate response to the incident, which she argued constituted an unfair dismissal under the Fair Work Act 2009. The primary legal issue the court had to decide was whether Noble's resignation constituted a dismissal within the meaning of the Act, specifically if she was forced to resign due to the employer's conduct.

The court found that while the employer's response to the workplace incident was inadequate, it did not amount to conduct that forced Noble to resign. The employer had taken steps to address the incident, including issuing a warning to the offending employee, engaging a human resources professional for conflict resolution, and proposing a temporary functional separation between Noble and the offending employee. Although these measures were not perfect and could have been more decisive, the court concluded that they provided Noble with real and effective choices other than resigning. The employer's actions did not rise to the level of forcing Noble to resign, as she could have continued to work while the conflict resolution process was ongoing or taken leave until the situation was resolved.

The court also considered the employer's communication with Noble and found it to be generally prompt and genuine, albeit sometimes brief. The employer's functional separation proposal, while not ideal, was a reasonable attempt to manage the situation and protect Noble's wellbeing. The court emphasised that the decision to resign was ultimately Noble's, and the employer neither intended for her to resign nor denied her a real or effective choice but to resign.

Based on these findings, the court concluded that Noble was not dismissed within the meaning of the Fair Work Act, and therefore, there was no unfair dismissal. The application was dismissed for want of jurisdiction.

Orders