Ms Jillian Troutbeck-Noy v Department of Education (State of Victoria) - [2024] FWC 2811

[2024] FWC 2811

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Jillian Troutbeck-Noy

Department of Education (State of Victoria)

(U2024/10033)

COMMISSIONER REDFORD

MELBOURNE, 25 OCTOBER 2024

Application for an unfair dismissal remedy, whether application statute-barred; whether application to Merit Protection Board made “under another law of a State” in relation to the dismissal.

On 27 August 2024 Ms Jillian Troutbeck-Noy filed an application pursuant to s 394 of the Fair Work Act 2009 (FW Act) seeking an unfair dismissal remedy in respect to dismissal of employment from the Department of Education in the State of Victoria (Department of Education) (the unfair dismissal application).
On 9 September 2024 the Department of Education filed a Form F3 Response in relation to the application, seeking that the application be dismissed pursuant to s 725 and 732 of the FW Act, on the basis that Ms Troutbeck-Noy had made an application or complaint under another law relating to the dismissal (the objection).
It is possible that the unfair dismissal application was not filed within the standard time limit prescribed by s 394(2) of the FW Act (21 days), depending on when the dismissal of Ms Troutbeck-Noy’s employment took effect. No objection on this ground was raised by the Department of Education in its Form F3 Response because of the confusion over when the dismissal took effect. As a result, this matter has unfolded such that focus has been given to the objection identified by the Department of Education pursuant to s 725. I did call for supplementary submissions on the question as to whether, if I were to dismiss the objection, it was necessary for me to consider whether to extend the time limit based on exceptional circumstances, and if so, whether I should. It appeared to me the supplementary submissions made by the Department of Education were to the effect that the application was probably not filed out of time[1]. However, for the reasons outlined below it is not necessary for me to determine these questions because I have determined to dismiss this application on the basis of s 725 of the Act.
The application was allocated to my chambers on 3 September 2024. I conducted a mention in relation to it on 16 September 2024 in which the parties agreed that I determine the objection on the papers, after the parties first file and serve an outline of argument.
The Department of Education filed an outline of argument on 20 September 2024 and Ms Troutbeck Noy on 27 September 2024.
On 14 October 2024 I called for further submissions on a particular aspect of the objection, and on the extension of time question. These were filed by both parties on 18 October 2024.

Evidentiary matters

There is no dispute about the evidentiary matters relevant to the objection. In particular:
1. A letter dated 2 August 2024 was sent from the Principal of Baden Powell College which…

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

AGLC: Ms Jillian Troutbeck-Noy v Department of Education (State of Victoria) [2024] FWC 2811
Case: [2024] FWC 2811
Decision Date: 25 OCTOBER 2024

CaseChat Overview and Summary

Ms Jillian Troutbeck-Noy applied to the Fair Work Commission for an unfair dismissal remedy in respect of her dismissal from the Department of Education (State of Victoria). The Department of Education objected to the application on the basis that it was statute-barred and that Ms Troutbeck-Noy had previously made a complaint under another law in relation to her dismissal. The central issue was whether Ms Troutbeck-Noy could pursue her unfair dismissal application given that she had previously lodged a complaint under another law which had not been withdrawn or failed for want of jurisdiction at the time she filed her application.

The Commissioner found that the annulment complaint made by Ms Troutbeck-Noy related to her dismissal and was an application under another law. The Ministerial Order 1388, under which the complaint was made, was a legislative instrument with a legislative character and created binding decisions, fulfilling the criteria of a “law” for the purposes of s 732 of the Fair Work Act. The annulment complaint was made within the required timeframe and was not withdrawn until after the unfair dismissal application was filed.

The Commissioner concluded that the statutory bar applied because the annulment complaint was extant when the unfair dismissal application was made. Ms Troutbeck-Noy’s subsequent withdrawal of the annulment complaint did not affect the bar. The Commissioner relied on previous decisions of the Fair Work Commission, which consistently held that an application could not be made if another complaint under another law was extant, regardless of its later withdrawal.

The application was dismissed on the basis that it was statute-barred by s 725 of the Fair Work Act. Ms Troutbeck-Noy was advised that she could potentially make a fresh application, subject to meeting the procedural requirements of the Act, including seeking an extension of time.

Orders