Miss Kiere Nebe/Rose v Wamba Feedlot

[2014] FWC 7515

[2014] FWC 7515

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Miss Kiere Nebe/Rose
v
Wamba Feedlot
(U2012/14299)

DEPUTY PRESIDENT ASBURY BRISBANE, 22 OCTOBER 2014

Application for unfair dismissal remedy - Jurisdiction.

[1] Ms Kiere Jennea Nebe/Rose applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to her dismissal by Wamba Feedlot (the Respondent). Ms Nebe/Rose suffered a workplace injury described as impaling herself on a mop handle which caused serious injury to her stomach. Ms Nebe/Rose claimed that she was dismissed because she was unable to perform certain duties as a result of the injury.

[2] Shortly after making her application, and before it was listed for a conciliation conference, Ms Nebe/Rose died in a traffic accident. The accident occurred while Ms Nebe/Rose was travelling for the purposes of attending a medical appointment in connection with her injury. Ms Nebe/Rose was twenty years of age at the time of her death.

[3] Ms Nebe/Rose’s next of kin, her mother, Ms Jennard Rose, sought to continue the application on her daughter’s behalf. A Conciliation Conference was conducted. Ms Jennard Rose attended on behalf of Ms Nebe/Rose. The outcome of that Conference was recorded as “settled – non- monetary” on the basis that the application was to be discontinued. A Notice of Discontinuance was not filed and the notes on the file also indicate that Ms Jennard Rose subsequently advised that she sought that the application proceed to hearing and that she had a letter of administration on behalf of her daughter.

[4] The Respondent filed a response to the application, which included a jurisdictional objection on the basis that Ms Nebe/Rose was not dismissed but was on leave without pay until she was given medical clearance to return to full duties, on the basis that the Respondent did not have enough suitable light duties for Ms Nebe/Rose to perform. It is further asserted that Ms Nebe/Rose had not completed the minimum employment period as provided in s.383 of the Act, because she had a break in her employment when she resigned and resumed employment on a casual basis, several weeks later.

[5] A Directions/Conference was conducted. At that Conference, Ms Jennard Rose stated that she did not wish to sign a Notice of Discontinuance because she believed to do so would be disrespectful to her daughter. Ms Jennard Rose further stated that her daughter was dismissed for refusing to perform a duty that was precluded by her medical certificate and that she would be letting Ms Nebe/Rose down if she discontinued the application for an unfair dismissal remedy.

[6] Ms Jennard Rose stated that she wished to have an opportunity to present the information that would have been presented by her daughter to the Commission, and that she would leave the matter of whether the application should continue, to the Commission to determine. Directions were issued requiring Ms Jennard Rose and the Respondent to file and serve material upon which they intended to rely in support of their respective cases. I have considered that material.

[7] In Gheorghe Stan v Frontline Australasia 1Deputy President Gostencnik considered in detail the question of whether the right under the Act to make an application for an unfair dismissal remedy survives the death of an applicant for an unfair dismissal remedy. The Deputy President held that it is unlikely that the right to bring and maintain such an application survives the death of an applicant on the basis that the right is a bare right, personal to the dismissed employee, and that the remedy of compensation is intertwined with and not severable from the discretionary considerations relating to an order for reinstatement. I respectfully agree with that observation.

[8] However, in the present case, it is not necessary to determine this issue. In the present case, I am satisfied that the application should be dismissed on the grounds that it has no reasonable prospects of success, in light of Ms Nebe/Rose’s death. In reaching this decision I have the utmost sympathy for Ms Nebe/Rose’s mother and the position that she is in. I accept that the loss suffered by Ms Jennard Rose and her family has been devastating. I also understand Ms Jennard Rose’s reluctance to discontinue the matter.

[9] However, there are disputed issues of fact about whether Ms Nebe/Rose was dismissed and whether she had been employed for the minimum period. These matters could only be resolved by evidence from Ms Nebe/Rose. Sadly, Ms Nebe/Rose is not able to give that evidence.

[10] Ms Jennard Rose has done all that she can to gather evidence to support her daughter’s case and to prosecute her application. However, documentary evidence and evidence of what Ms Jennard Rose believed the facts to have been or what her daughter told her, is not sufficient to counter the objections raised by the Respondent. It is also clear that there was a break in employment brought about by Ms Nebe/Rose’s resignation, with the probable result that Ms Nebe/Rose had not served the minimum employment period at the point her employment ceased. The reasons for Ms Nebe/Rose’s resignation do not alter this fact. It is also the case that the circumstances under which employment ceased and that gave rise to the present application are disputed and cannot be resolved in Ms Nebe/Rose’s favour in the absence of evidence from her.

[11] Accordingly, I am satisfied that the application has no reasonable prospects of success and that it should be dismissed pursuant to s.587 if the Act. An Order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

Mrs J. Rose on behalf of the Applicant.

Mr E. Hardwick on behalf of the Respondent.

Hearing details:

2013.

Brisbane:

June 19.

 1   [2014] FWC 5457.

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