Mr Scott Modra v Cre8ive Coffee Roasters Pty Ltd - [2024] FWC 1160

[2024] FWC 1160

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Mr Scott Modra
v

Cre8ive Coffee Roasters Pty Ltd

(C2024/232)

COMMISSIONER DURHAM

BRISBANE, 3 MAY 2024

Application to deal with contraventions involving dismissal – jurisdictional objection – whether employee dismissed – initial resignation accepted – terminated at the employer's initiative – jurisdictional objection dismissed.

On 12 January 2024, Mr Scott Modra (Applicant/Mr Modra) made a General Protections application to the Commission under section 365 of the Fair Work Act 2009 (the Act). Mr Modra alleges that he was dismissed by Cre8ive Coffee Roasters Pty Ltd (Respondent) on 22 December 2023 in contravention of his workplace rights.

The Respondent opposed the application, by way of raising a jurisdictional objection that the Applicant was not dismissed.

A person may only apply to the Commission for the Commission to deal with the dispute under section 365 of the Act if the person has been dismissed. The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford states that determining if an Applicant has been dismissed is an antecedent issue.[1] Therefore, a jurisdictional objection based on the Applicant not being dismissed must be decided before the Commission exercises its conciliatory powers under section 368 of the Act.[2]

Hearing of the Jurisdictional Objection

On 19 January 2024, I issued Directions for the parties to file their material in relation to the jurisdictional objection.

On 25 March 2024, the question of whether the Applicant was dismissed was dealt with at a jurisdictional objection hearing.

The Applicant gave oral evidence but did not call any witnesses. The Applicant filed his own witness statement, along with a witness statement from Ms Jessica Wijaya. He also annexed a written resignation, SMS correspondence between him and the Respondent, his employment contract and various pay slips.

Mr Dan Norris (Owner of the Respondent) gave oral evidence and called one witness, Ms Erin Schranz. Mr Norris also provided witness statements for himself and Ms Schranz as well as Bryon van Zul, Darren Niol, Julia Bonelli and Taylor Matthews, who are all employees of the Respondent.

Prior to the hearing of the matter, my Chambers constructed a paginated Court Book consisting of submissions and evidence of the parties. References to evidence are by way of the relevant page number in the court book.

Evidence of the Respondent

The written evidence of the Respondent can be simply summarised to state that the Applicant resigned and the Respondent accepted,[3] the position was advertised online,[4] but the Applicant agreed to remain employed for a two week period in which he would train up a new employee and was then paid out all his entitlements.[5] The witness statements tendered by the Respondent also indicate that customers were informed of the Applicant resigning by way of social media and email.[6]

I note that many of the Respondents witness statements were identically written. This…

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: [2024] FWC 1160
Decision Date: 3 MAY 2024

CaseChat Overview and Summary

Mr Scott Modra brought an application to the Fair Work Commission (FWC) under section 365 of the Fair Work Act 2009, alleging that Cre8ive Coffee Roasters Pty Ltd dismissed him in contravention of his workplace rights. Cre8ive Coffee Roasters Pty Ltd opposed the application by raising a jurisdictional objection, asserting that Mr Modra was not dismissed. The primary legal issue was whether Mr Modra had been dismissed within the meaning of section 386(1) of the Act, which defines dismissal as either the termination of employment on the employer's initiative or the employee being forced to resign due to employer conduct.

The Commissioner examined the evidence provided by both parties. The Respondent argued that Mr Modra had resigned and the company had accepted this resignation. Mr Modra, however, contended that while he initially resigned, the employment was ultimately terminated by the Respondent's unilateral decision to pay out his accrued leave instead of allowing him to use it. The Commissioner found that the evidence showed Mr Modra did not consent to the manner in which his employment was terminated, and the Respondent had acted on their own initiative by paying out his leave. This led to the conclusion that Mr Modra had been dismissed within the meaning of section 386(1)(a) of the Act.

In conclusion, the Commissioner dismissed the Respondent's jurisdictional objection, finding that Mr Modra had indeed been dismissed. The application will now proceed to a conciliation conference to explore the resolution of the dispute.

Orders