Megan Knight v The Trustee for the Mattray Trust t/a Murrayway Pty Ltd - [2022] FWC 959

[2022] FWC 959

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Megan Knight
v

The Trustee for the Mattray Trust t/a Murrayway Pty Ltd

(C2021/6273)

COMMISSIONER HUNT

BRISBANE, 27 APRIL 2022

Application to deal with contraventions involving dismissal – application for costs following discontinuance of application – application for costs by respondent made pursuant to s.375B of the Fair Work Act 2009 – costs not ordered

Introduction

This decision concerns an application by The Trustee for the Mattray Trust t/a Murrayway Pty Ltd (Murrayway) made on 1 December 2021 seeking an order for costs against Ms Megan Knight pursuant to s.375B of the Fair Work Act 2009 (the Act).

Background to the substantive application

On 9 September 2021, Ms Knight made an application to the Fair Work Commission (the Commission) under s.365 of the Act, by way of a Form F8 – General protections application involving dismissal (F8), alleging that she had been dismissed from her employment with Murrayway in contravention of a general protection provided by the Act.

Ms Knight was self-represented throughout the proceedings.

Mr Matthew Murray is the director of Murrayway, and he participated in the proceedings, represented by Ms Jacinta Roberts of BR Solicitors.

Ms Knight alleged that she was dismissed by Murrayway in contravention of Part 3-1—General protections, specifically, s.352 of the Act which provides:

“352 Temporary absence—illness or injury
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
Note: This section is a civil remedy provision (see Part 4‑1).”

Section 365 of the Act, which is in Part 3-1 of the Act, provides:

“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”

Ms Knight worked for Murrayway from 28 April 2021 to 26 August 2021. In the F8, Ms Knight stated that her dismissal took effect on 25 August 2021, but that she was notified of the dismissal a day later on 26 August 2021. A detailed account of the text messages sent between Ms Knight and Mr Murray is found at [12]. In addition, Ms Knight said the following occurred:

·   She was employed on a full-time basis as a Café Manager at Park & Co, a café owned and operated by Murrayway.
·   Her employment was reviewed after three months and she was given a pay rise; she had not been made aware of any performance issues.
·   She had a fall at home in the afternoon on Sunday, 22 August 2021, and despite having a swollen foot, she attended work the following morning on Monday, 23 August 2021.
·   She worked…

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.

Continue reading Megan Knight v The Trustee for the Mattray Trust t/a Murrayw...

Details

AGLC: Megan Knight v The Trustee for the Mattray Trust t/a Murrayway Pty Ltd [2022] FWC 959
Case: [2022] FWC 959
Decision Date: 27 APRIL 2022

CaseChat Overview and Summary

In this case, Megan Knight brought a general protection application against Murrayway, alleging that she was dismissed in contravention of the Fair Work Act 2009. Murrayway responded by filing a jurisdictional objection and denying that Ms Knight was dismissed. The matter was listed for a hearing on 17 November 2021, but Ms Knight discontinued her application on the morning of the hearing. Murrayway then applied for costs against Ms Knight under section 375B of the Act. Ms Knight opposed the application for costs, arguing that she had reasonable cause and prospects of success in bringing her application. The Commissioner found that there was no unreasonable act or omission on the part of Ms Knight that would justify ordering costs against her. The Commissioner noted that Ms Knight had a strong case that she had been dismissed and that her discontinuance of the application on the morning of the hearing was not unreasonable. The application for costs was dismissed.

Orders