Mr James Willis v Be Imaging Pty Ltd T/A Iris Imaging - [2021] FWC 4306

[2021] FWC 4306

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr James Willis

BE Imaging Pty Ltd T/A IRIS Imaging

(U2020/12418)

Deputy President Lake

BRISBANE, 29 JULY 2021

Application for an unfair dismissal remedy – whether the applicant resigned – the Applicant did not resign – jurisdictional objection dismissed

Mr James Willis (the Applicant) has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that the way in which his employment ended with BE Imaging Pty Ltd T/A IRIS Imaging (the Respondent) constituted a dismissal, and was harsh, unjust or unreasonable.

The Applicant commenced employment with the Respondent on 5 June 2019. His employment came to an end on around 28 August 2020. The Respondent raised a jurisdictional objection to the application on the basis that the Applicant was not dismissed, submitting that he voluntarily resigned on 28 August 2020.

On 12 January 2021, the Commission issued a Decision,[1] dismissing the application on its own initiative pursuant to s.587 of the Act, as it appeared that the Applicant had failed to respond to Chambers’ correspondence directing him to comply with directions. Following this, an investigation by the Commission’s information technology team revealed that several pieces of correspondence from the Applicant had been “blacklisted” and therefore, had not been received. As a result, this Decision was revoked on 12 January 2021,[2] and the matter was reallocated to me on 15 March 2021.

On 12 April 2021, the Applicant sent correspondence to my Chambers which expressed that he wanted me to recuse myself, alleging that the language used and emails from my Chambers gave rise to his impression of apprehended bias. I determined to hear the recusal application and the jurisdictional objection together. Directions for the filing of materials regarding both these matters were issued and both were dealt with by way of hearing on 1 June 2021.

RECUSAL EVIDENCE AND SUBMISSIONS

Applicant’s Material on Recusal

The Applicant submitted that in my Decision dated 12 January 2021, I was particularly “vehement and scathing” of the Applicant. The Applicant provided an example quoting that "Despite the delay, the conference proceeded." He stated that he had already provided verbally, the reason as to why he was not available, stating that he did not received notification. Additionally, he stated that at this time, he was on the phone to the staff of the Wesley Mission's STARH Project regarding his urgent temporary emergency accommodation when my Associate rang.

The Applicant also submitted that paragraph [3] of the Decision provided "despite numerous phone calls" and that this inferred that there were many phone calls. The Applicant stated that there were two at the most, to which he said that he responded after listening to the Associate's “domineering and offensive voicemail.”

At the hearing, the Applicant referred to paragraph [4] of the Decision which said, “Shortly after the applicant attended.” The Applicant’s evidence was that the word 'shortly' indicated that…

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.

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Details

Case: [2021] FWC 4306
Decision Date

CaseChat Overview and Summary

Mr James Willis made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). He claimed that the way in which his employment ended with BE Imaging Pty Ltd T/A IRIS Imaging constituted a dismissal and was harsh, unjust or unreasonable. The Respondent objected to the jurisdiction of the Court on the basis that the Applicant had not been dismissed but had voluntarily resigned. The issues for the Court to decide were whether the Applicant had resigned and whether the Applicant's resignation was forced by the conduct of the employer. The Court considered the evidence and submissions of both parties. The Court accepted that the Applicant had not voluntarily resigned. Rather, it found that the Applicant's resignation was forced by the Respondent's conduct. Accordingly, the Court dismissed the Respondent's jurisdictional objection.

Orders