Ms Kylie Adamson v Spotless Facility Services Pty Ltd - [2024] FWC 2341

[2024] FWC 2341

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Ms Kylie Adamson
v

Spotless Facility Services Pty Ltd

(C2024/1906)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 2 SEPTEMBER 2024

Application to deal with contraventions involving dismissal – extension of time – no dismissal.

On 22 March 2024, Ms Adamson made an application under s.365 of the Fair Work Act 2009 (Cth) (the Act) to deal with a contravention involving dismissal. The Respondent raised two jurisdictional objections, the application was lodged out of time and that there was no dismissal.

Ms Adamson commenced employment with the Respondent on 28 July 2023 as a part-time Food Services Assistant, her employment ended on 22 February 2024. Ms Adamson filed her application on 22 March 2024 which was 8 days out of time.

At the conclusion of a hearing on 3 July 2024, I granted a further period of time for Ms Adamson to lodge her application and provided reasons for my decision. I then turned to the second jurisdictional objection dismissing Ms Adamson’s application, finding that her employment was terminated at her own initiative. I advised the parties that further written reasons pertaining to the second jurisdictional objection would follow.

Second jurisdictional objection: No dismissal

The circumstances relating to the termination of Ms Adamson’s employment are contested. Ms Adamson says that she was forced to resign from her role on 22 February 2024, with the dismissal taking effect on that day. The Respondent says Ms Adamson resigned from her position and that there was no dismissal.
In support of her application Ms Adamson says she was subjected to bullying and harassment by other employees after being elevated to a relief supervisory position. Those events relied on occurred in early 2023. On 13 June 2023, Ms Adamson sent an email to the Human Resources Manager raising a complaint about alleged bullying and disclosing she was suffering from a mental health issue because of the alleged bullying.

In October 2023, Ms Adamson suffered a wrist injury. Ms Adamson submits she felt that Spotless was using her medical condition to remove her from her employment. Ms Adamson says she felt like she had no option other than to resign as she could not continue in the employment relationship whilst the alleged bullying and harassment remained unchecked.

The Respondent submits that in October 2023, Ms Adamson presented at work with a wrist injury and was observed not performing several of her designated tasks. Ms Adamson reported that she had issues with feeling in her hand and was experiencing shoulder pain and disclosed several other medical conditions that were affecting her at the time. Ms Adamson was directed not to attend work until she was able to provide a medical report so that the appropriate adjustments could be made to enable her to safely perform her role. Ms Adamson was sent home on full pay.

On 25 October 2023, Ms Adamson was directed to provide a medical report from her treating…

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 Kylie Adamson v Spotless Facility Services Pty Ltd

Details

AGLC: Ms Kylie Adamson v Spotless Facility Services Pty Ltd [2024] FWC 2341
Case: [2024] FWC 2341
Decision Date: 2 SEPTEMBER 2024

CaseChat Overview and Summary

In the Fair Work Commission, Ms Kylie Adamson applied for relief under section 365 of the Fair Work Act 2009 in relation to a contravention involving her dismissal from Spotless Facility Services Pty Ltd. The Respondent objected to the application on the grounds that it was lodged outside the allowable time and that there was no dismissal. Ms Adamson's employment ended on 22 February 2024, and she filed her application on 22 March 2024, which was eight days beyond the statutory deadline. The Commissioner initially extended the time for filing but later dismissed the application due to a lack of dismissal.

The crux of the matter was whether the actions of Spotless Facility Services Pty Ltd constituted a dismissal. Ms Adamson alleged that she was forced to resign due to bullying, harassment, and the mishandling of her wrist injury. Spotless Facility Services Pty Ltd contended that Ms Adamson resigned voluntarily, and there was no dismissal. The evidence presented by both parties indicated that Ms Adamson had strained relationships with coworkers, was dissatisfied with the handling of her workplace bullying complaint, and felt frustrated with the relief supervisor's role. However, there was no conclusive evidence that Spotless Facility Services Pty Ltd's conduct forced Ms Adamson to resign.

The Commissioner considered the evidence and concluded that Ms Adamson's resignation was not a dismissal by Spotless Facility Services Pty Ltd. The resignation occurred after a considerable period from the events Ms Adamson cited, indicating careful consideration. The Commissioner found that Ms Adamson had no other option but to resign due to the Respondent's conduct, but was not satisfied that the termination resulted from the Respondent's actions. Ultimately, the Commissioner determined that Ms Adamson was not dismissed, and thus, the application under section 365 of the Act was dismissed.

Orders