Miss Esabell Jacobs v Wooldridges Australia Pty Ltd

[2010] FWA 9278

[2010] FWA 9278

FAIR WORK AUSTRALIA

INTERIM DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Miss Esabell Jacobs
v
Wooldridges Australia Pty Ltd
(C2010/5593)

COMMISSIONER CLOGHAN PERTH, 1 DECEMBER 2010

Interim Decision - general protections dispute.

[1] On 19 November 2010, Miss Esabell Jacobs (“the Applicant”) made application pursuant to s.365 of the Fair Work Act 2009 (“the Act”) seeking Fair Work Australia to deal with a General Protections Dispute.

[2] The respondent employer to the application is Wooldridges Australia Pty Ltd (“the Employer”).

[3] Pursuant to s.368(1) of the Act, a conference was conducted to deal with the dispute on 1 December 2010.

[4] The Applicant was employed by the Employer as a Customer Services Officer from 4 October to 8 November 2010.

[5] In summary, the Applicant claims that on 19 October 2010 she informed her Employer of bullying by her immediate manager. Following attempts to resolve the allegations of bullying, the Employer undertook certain actions relating to the Applicant’s immediate manager and, following assessment and advice, advised Miss Jacobs of its decision to relocate her to another store. Miss Jacobs asserts that her ‘transfer to commence immediately after notification or be dismissed”.

[6] The Employer agrees that the Applicant was advised of the proposal to relocate her to another store but sought what other options were available. One option explored was the payment of two (2) week’s salary and Miss Jacobs leaving her employment; the Employer rejects the contention that it dismissed Miss Jacobs and that her contract of employment ended by mutual agreement.

[7] For a certificate to be issued by the Tribunal in accordance with s.369 of the Act, it is necessary that the prerequisites in s.365 of the Act be met. The prerequisites are essentially:

• a person has been dismissed; and



• the person was dismissed in contravention of Part 3-1 of the Act.

[8] Conference proceedings, by their nature, are intended to be informal, expeditious and on a “without prejudice” basis.

[9] Consequently, it is not possible, on all occasions, for the Tribunal to be satisfied in conference that the conditions set out in s.365 of the Act have been met; this is one of those occasions.

[10] The Applicant and Employer are invited to provide written submissions which go to the questions of whether the Applicant:

• was dismissed by the Employer; and



• whether that dismissal (if it occurred) was in contravention of Part 3-1 of the Act.

[11] Written submissions are to be provided to the Tribunal by 4:00pm on Friday, 17 December 2010.

COMMISSIONER

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