DECISION

Fair Work Act 2009
s 739 - Application to deal with a dispute

Ms Denice Tarasenko
v
Insurance Australia Group
(C2016/5342)

DEPUTY PRESIDENT SAMS

SYDNEY, 19 JUNE 2017

Alleged dispute about matters arising under an enterprise agreement and the National Employment Standard (NES) – carers’ leave – transfer – allegations of bullying –investigation processes agreed – carers’ leave dispute resolved – applicant resigned – other grievances not matters arising under the NES or Agreement –no jurisdiction – no power or utility in granting orders sought - application dismissed.

BACKGROUND

[1] Ms Denice Tarasenko was employed as a Customer Service Host/Business Consultant by Insurance Australia Group (‘IAG’ or the ‘respondent’) at its Hornsby Office. She commenced employment on 23 February 2015 and her employment conditions were covered by the IAG Enterprise Agreement [AE419009] (the ‘Agreement’).

[2] On 7 September 2016, Ms Tarasenko filed an application, pursuant to s 739 of the Fair Work Act 2009 (the ‘Act’), seeking to have the Fair Work Commission (the ‘Commission’) deal with a dispute under the Dispute Settlement Procedure (‘DSP’) of the Agreement. It is necessary to set out the Agreement’s DSP, which is found at cl 8 as follows:

Step 1 – The Employee should first discuss the matter with their immediate Manager who must make every effort to resolve the matter.

Step 2 – If the matter is not resolved, or if it is not appropriate to discuss the matter with their immediate Manager, the Employee should discuss the matter with their next level Manager who will attempt to resolve the matter.

Alternatively an Employee can contact their Human Resources representatives directly who will work with the Employee and Manager to attempt to resolve the issue.

Step 3 – If the matter is not resolved at this point the Employee may, if appropriate, notify an employee representative (such as the FSU), who will discuss the matter further with the relevant Human Resources representative.

Step 4 – If the matter is not resolved it will be brought to the attention of the relevant Head of Human Resources. They or their nominee will discuss the matter further with the relevant Human Resources representative.

Step 5 – If the matter is not resolved by the parties in steps 1-4 above, the parties may separately or jointly refer the matter to the FWC for resolution.

[3] Ms Tarasenko described the dispute as ‘decline of leave and transferred whilst holding a carers’ medical certificate which resulted in false allegations of unreasonable behaviour against another employee’. The original relief sought by Ms Tarasenko was ‘for the dispute to be fairly mediated and employee not transferred or dismissed during the dispute process…’.

[4] In later material, filed by Ms Tarasenko it would appear that she now sought that:

the investigation of her alleged inappropriate behaviour, be placed on hold until she and the complainant returned from leave;

that IAG not transfer or dismiss her during the investigation;

that IAG…

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.

Continue reading Ms Denice Tarasenko v Insurance Australia Group

Details

AGLC: Ms Denice Tarasenko v Insurance Australia Group [2017] FWC 2432
Case: [2017] FWC 2432
Decision Date: 19 JUNE 2017

CaseChat Overview and Summary

Ms Denice Tarasenko brought proceedings against her employer, Insurance Australia Group, in the Fair Work Commission, alleging various disputes arising under an enterprise agreement and the National Employment Standard (NES). She claimed that she was not granted carers’ leave and that she was bullied by her manager, amongst other grievances. The employer maintained that the applicant’s claims were not matters arising under the NES or the enterprise agreement, and therefore, the Commission lacked jurisdiction to hear the case. The legal issues before the Commission were whether the applicant’s claims fell within the scope of matters arising under the NES or the enterprise agreement, and if the Commission had jurisdiction to hear the case.

The Commission found that the applicant’s carers’ leave dispute had been resolved and that she had resigned from her employment. Consequently, there was no power or utility in granting orders in relation to that particular grievance. The Commission also determined that the other grievances raised by the applicant were not matters arising under the NES or the enterprise agreement. As a result, the Commission did not have jurisdiction to hear the case. The application was dismissed. The Commission found that there was no basis for granting the orders sought by the applicant, and no power or utility in doing so.

Orders