Melanie Figgis v ALDI Foods Pty Ltd as General Partner of ALDI Stores (A Limited Partnership)
[2024] FWC 2844
•21 OCTOBER 2024
| [2024] FWC 2844 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Melanie Figgis
v
ALDI Foods Pty Ltd as General Partner of ALDI Stores (A Limited Partnership)
(C2024/4778)
| COMMISSIONER FOX | MELBOURNE, 21 OCTOBER 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objections raised by Respondent – objections of not dismissed and application filed out of time.
On 12 July 2024, Ms Melanie Figgis filed an application under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a general protections dispute involving dismissal.
Ms Figgis’ Form F8 – General protections application involving dismissal application (Form F8) nominated ss.351 and 352 as the general protections contravened. The Form F8 provides no detail or specifics as to the nature of these nominated contraventions, instead only stating that ‘further information [was] to be sent’.
To date, no further information has been provided by Ms Figgis as to the nature of the alleged adverse action.
Ms Figgis’ employment with ALDI Foods Pty Ltd as General Partner of ALDI Stores (A Limited Partnership) (the Respondent) came to an end on 20 June 2024. For Ms Figgis to have filed her application on time, she was required to file her Form F8 by 11 July 2024. Ms Figgis filed her application at 12:00:46AM on 12 July, 46 seconds late.
Ms Figgis’ Form F8 application was not filed with the Commission within 21 days of her dismissal as required under s.366(1)(a) of the Act.
In its Form F8A – Response to general protections application involving dismissal, the Respondent raised two jurisdictional objections:
·Ms Figgis’ application was filed out of time, and
·Ms Figgis was not dismissed by the Respondent, but rather resigned from her employment of her own accord.
The matter was referred to me for determination of the jurisdictional objections.
On 16 August 2024, I issued Directions requiring the Respondent to file an outline of submissions, witness statements and any other documentary material by 23 August 2024. Ms Figgis was required to file an outline of submissions, witness statements and any other documentary material by 30 August 2024. The Determinative Conference/ Hearing of the jurisdictional objections was listed for 13 September 2024.
A Mention for the matter was conducted on 19 August, with both parties in attendance. At the Mention I explained the Directions and the requirement for each party to file their materials by the dates specified.
No material was received from Ms Figgis in compliance with these Directions.
My Chambers wrote to Ms Figgis on 2 September 2024 to inquire as to when Chambers could expect to receive Ms Figgis’ material. The following day, Ms Figgis requested an extension until 6 September 2024 to file her material. Ms Figgis was granted the requested extension, and the Directions of 16 August 2024 were amended to this effect.
No material was received from Ms Figgis in compliance with these Amended Directions.
On 11 September 2024, Ms Figgis wrote to my Chambers to request a stay of proceedings until such time as she was able to participate in the further conduct of her application. Ms Figgis cited health issues as the reason for her non-compliance with the Amended Directions but provided no further clarification or evidence of said issues. My Chambers requested medical evidence be provided in support of this request. On 12 September 2024, Ms Figgis provided a medical certificate stating that she ‘was unfit for other and allowed absence of other for dates between 12 September and 13 September 2024.’
In the circumstances, I determined that it would be appropriate to vacate the Determinative Conference/ Hearing of 13 September 2024. My Chambers sent the parties correspondence to this effect and issued further Directions in the matter. These Directions gave Ms Figgis a further opportunity to file material in response to the Respondent’s jurisdictional objections, and to file further medical evidence to substantiate any request for a stay of proceedings by 18 September 2024. In this correspondence, Ms Figgis was advised that if no material was filed in accordance with these Directions, either in response to the jurisdictional objections, or to support her request for a stay of the proceedings, then the jurisdictional objections would be determined on the material filed by the parties.
No material was filed by Ms Figgis in response to the Directions of 13 September 2024, and further, no request for an extension of time to file material was made by Ms Figgis. Section 593 of the Act specifies that the Commission is not required to hold a Hearing except as required by the Act. On 19 September 2024, I advised parties that I would determine the jurisdictional objections on the material currently before me. Parties were to advise by 20 September 2024 if they had any objections to this course of action. No objections were received in response to this correspondence by either party.
Objection: Application filed out of time
Ms Figgis has been provided with multiple opportunities to provide reasons as to why her Form F8 application was filed out of time and whether there were any exceptional circumstances which warrant consideration for granting an extension of time. To date, Ms Figgis has not done so.
As no submissions, reasons or material has been filed by Ms Figgis, I cannot find that there are exceptional circumstances which would warrant the exercise of my discretion to grant an extension of time.
I find that Ms Figgis has filed out of time, and there are no exceptional circumstances which warrant the granting of an extension of time.
Objection: Applicant not dismissed
The Respondent also raised a jurisdictional objection that Ms Figgis was not dismissed, but rather resigned from her employment with the Respondent.
The Respondent filed submissions which included the witness statement of Mr Jardin McClintock. Mr McClintock submits that Ms Figgis had been on an extended period of leave and returned to work on 10 June 2024. Mr McClintock submits that Ms Figgis verbally resigned to him on 10 June 2024 during an in-person discussion at a nearby cafe that went for approximately two hours.
Mr McClintock alleges that after the discussion on 10 June 2024, Ms Figgis returned to the Respondent’s store where a conversation took place between Ms Figgis, Mr McClintock and Mr Megee in which Ms Figgis’ resignation was discussed. He further submits that Ms Figgis left the store around 2:50PM and did not attend the rest of her shift, nor the rest of her scheduled shifts that week. Mr McClintock further alleges that Ms Figgis did not advise the Respondent that she would not be in attendance for these shifts.
Mr McClintock outlines in his statement the attempts he made and the further contact he had with Ms Figgis by telephone, text and email affirming what he believed was her intention to resign and provided her the opportunity to affirm, or otherwise dispute her resignation. It is Mr McClintock’s view that Ms Figgis resigned voluntarily on 10 June 2024.
Ms Figgis was afforded the opportunity to make submissions and provide any evidence regarding the Respondent’s contention that she was not dismissed, but rather voluntarily resigned from her employment. No submissions have been made by Ms Figgis.
With respect to the unchallenged evidence of Mr McClintock, I take note of the Full Bench of the Commission in INPEX Australia Pty Ltd v the Australian Workers Union that:[1]
“[29] The Commission is not a court. It is not bound by the rules of evidence. It is required to perform its functions and exercise its powers in a manner that is quick, informal and avoids unnecessary technicalities. But when the Commission makes a finding of fact, it must proceed by reference to rationally probative material. That may include material, inter alia, evidence or, in an appropriate case, submissions. For example, it may be appropriate for a finding of fact to be made on the basis of an unchallenged submission made by one party, particularly when the other party is legally represented.”
I also note that the Full Court of the Federal Court of Australia in Ashby v Slipper stated:[2]
“… that [it] is a general proposition, evidence, which is not inherently incredible and which is unchallenged, ought to be accepted…”
Ms Figgis has been provided with the opportunity to file material and make submissions to challenge the contentions put forward by the Respondent but has not done so. I am satisfied it is appropriate to accept Mr McClintock’s unchallenged evidence in relation to whether Ms Figgis resigned.
Having regard to the unchallenged material of the Respondent, and in the absence of any submissions or material from Ms Figgis, I find Ms Figgis was not dismissed for the purpose of s.365 of the Act. As I find that Ms Figgis has not been dismissed, the Commission does not have jurisdiction to deal with the application.
The jurisdictional objections are upheld. Ms Figgis’ application is dismissed. An Order to this effect[3] will be issued with this Decision.
COMMISSIONER
Determined on the papers.
[1] [2021] FWCFB 1038.
[2] [2014] FCAFC 15, citing Precision Plastics Pty Limited v Demir (1975) 132 CLR 362, 370-371 (per Gibbs J, Stephen J agreeing, Murphy J generally agreeing).
[3] PR780611.
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