Meagan Wuchatsch v Care I Wish Pty Ltd

[2023] FWC 2006

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Meagan Wuchatsch
v

Care I Wish Pty Ltd

(C2023/4324)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 11 AUGUST 2023

Section 365 – jurisdictional objection – objection dismissed.

This is an edited version of a decision delivered ex tempore on transcript earlier this morning. Meagan Wuchatsch has made a general protections application under s 365 of the Fair Work Act 2009 (Act). Care I Wish Pty Ltd (respondent) objected to the application. Section 365 states that the Commission can only deal with a dispute under s 365 if the applicant has been dismissed and the applicant alleges that the dismissal contravened Part 3-1. The respondent contended that the second requirement has not been met.

The Commission’s form F8 asks applicants to identify which provisions in Part 3-1 have been contravened. Ms Wuchatsch has stated in her application that she believes that she was dismissed for making queries about her pay and allowances, and that the respondent has contravened ss 340 and 343 of the Act. The respondent submitted that the application was without any substance whatsoever and that there was no legitimate allegation of a contravention of Part 3-1. But that is a contention going to the merits of the application, not the jurisdictional question of whether the applicant alleges that the dismissal contravened Part 3-1. It is not the Commission’s task to determine the merits of s 365 applications unless the parties have agreed to arbitration. The respondent further contended that Ms Wuchatsch had not alleged a contravention of Part 3-1 directly to the company during her employment. But s 365 is concerned with allegations of contraventions of Part 3-1 that are notified to the Commission.

Ms Wuchatsch has been dismissed. It is clear that she also alleges that the dismissal contravened Part 3-1. The requirements of s 365 have been met. The objection is therefore dismissed. The application will shortly be listed for a conciliation conference.

DEPUTY PRESIDENT

Appearances:

No appearance for the applicant
P. Bennett for the respondent

Hearing details:

2023
Melbourne
11 August

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Meagan Wuchatsch has applied to the Fair Work Commission for relief under section 365 of the Fair Work Act 2009, claiming that her dismissal by Care I Wish Pty Ltd was in contravention of the Act. The respondent, Care I Wish Pty Ltd, objected to the application on the basis that Ms Wuchatsch had not alleged that her dismissal contravened Part 3-1 of the Act. The Commission must consider whether it has jurisdiction to hear the application before it considers the merits of the matter.

The Commission considered whether Ms Wuchatsch had alleged that her dismissal contravened Part 3-1 of the Act. Ms Wuchatsch stated in her application that she was dismissed for making queries about her pay and allowances, and that the respondent had contravened sections 340 and 343 of the Act. The respondent argued that there was no legitimate allegation of a contravention of Part 3-1. However, the Commission noted that it is not its task to determine the merits of section 365 applications unless the parties have agreed to arbitration. The Commission found that Ms Wuchatsch had alleged that her dismissal contravened Part 3-1 of the Act, and that the requirements of section 365 had been met.

The Commission dismissed the objection to the application and noted that the application would be listed for a conciliation conference. The Commission found that it had jurisdiction to hear the application and that the matter should proceed to the next stage of the process. The Commission did not consider the merits of the application, as this would only occur if the parties had agreed to arbitration.

This decision highlights the importance of properly framing a section 365 application to ensure that the Commission has jurisdiction to hear the matter. The Commission will not consider the merits of an application unless the requirements of section 365 have been met, and it is not the Commission's role to determine the merits of the application at this stage. It is also important to note that the Commission will only consider allegations of contraventions of Part 3-1 that are notified to the Commission, rather than those that may have been alleged directly to the employer during employment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established