Maddison Noble v Smiling Samoyed Pty Ltd - [2023] FWC 267

[2023] FWC 267

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, 2 FEBRUARY 2023

Application for an unfair dismissal remedy – strike out – whether no reasonable prospects of success – interlocutory application dismissed

This published decision sets out and expands upon reasons for decision delivered by me ex tempore on 31 January 2023.

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 on 12 December 2022 and that her dismissal was unfair within the meaning of s 394 of the FW Act.

Ms Noble’s application is premised on the proposition that she was forced to resign as a result of the respondent’s handling an incident between Ms Noble and another employee.

Smiling Samoyed oppose the application and raise a jurisdictional objection that Ms Noble was not dismissed, but rather, freely resigned from her employment.

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

An application was made by the respondent on 30 January 2023 that Ms Noble’s application be dismissed under s 587 of the FW Act on the ground that it has no reasonable prospects of success (the strike-out application).

Having granted permission for Ms Noble to be represented, I conducted a directions hearing on 31 January 2023 at which time I received submissions from both parties on the strike-out application. Following this, I delivered my decision dismissing the strike-out application.

Submissions

Smiling Samoyed submit that Ms Noble’s application has no reasonable prospects of success because:

· the respondent did not intend to terminate Ms Noble’s employment; and

· Ms Noble, of her own volition, resigned from her employment and did so without serving out her notice period.

Smiling Samoyed denies the assertion by Ms Noble that she was forced to resign and posits that Ms Noble’s application cannot succeed for want of jurisdiction given her having not been dismissed.

Ms Noble submits that the Commission should not dismiss her application as there is a real question to be answered on the facts and on the law.[1] Ms Noble’s position is that she should be afforded the opportunity to be heard on the basis that there are disputed facts that are yet to be established concerning the events surrounding her resignation, including whether or not at law she was dismissed within the meaning of the FW Act by the respondent.

Consideration

Section 587 of the FW Act provides:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

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 267
Decision Date: 2 FEBRUARY 2023

CaseChat Overview and Summary

In the matter of Maddison Noble v Smiling Samoyed Pty Ltd, the applicant, Ms Noble, sought an unfair dismissal remedy against her employer, Smiling Samoyed, claiming she was forced to resign under unfair circumstances. Smiling Samoyed argued that Ms Noble was not dismissed but instead resigned voluntarily. The dispute was brought before the Fair Work Commission under section 394 of the Fair Work Act 2009, with Smiling Samoyed further applying to strike out Ms Noble’s application on the basis it had no reasonable prospects of success. The matter was heard by Deputy President Anderson.

The legal issues for the Court to determine were whether Ms Noble's application should be struck out for having no reasonable prospects of success, and if there were any jurisdictional issues regarding whether Ms Noble was dismissed or had resigned. The Court needed to assess if Ms Noble's case was so lacking in merit or substance that it was not reasonably arguable, and if the jurisdictional issue was determinative at this stage of the proceedings.

Deputy President Anderson held that the bar to establish that an application had no reasonable prospects of success was high, particularly at an early stage of proceedings. The Court found that the concept of 'forced resignation' was not inherently or so apparently lacking in merit that Ms Noble's application should be dismissed. The Court observed that while Ms Noble had a significant challenge to overcome, there were precedents where resignations had been deemed forced where the employer's conduct made the workplace unsafe. The Court also noted that the statutory test required that the application was not merely unlikely to succeed, but rather manifestly untenable or groundless. As the jurisdictional pre-condition had not been made out, the Court did not exercise its discretion to summarily dismiss the application. The Court did note, however, that a costs order could still be made against Ms Noble if her application ultimately had no reasonable prospects of success.

The Court dismissed Smiling Samoyed’s strike-out application, allowing Ms Noble’s unfair dismissal claim to proceed to a full hearing.

Orders