Ms Theresa Lam v Brisbane Shade Solutions Pty Ltd
[2022] FWC 1272
•24 MAY 2022
| [2022] FWC 1272 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Theresa Lam
v
Brisbane Shade Solutions Pty Ltd
(C2022/587)
| DEPUTY PRESIDENT CROSS | SYDNEY, 24 MAY 2022 |
Application to deal with contraventions involving dismissal – applicant non-attendance – application dismissed.
On 17 January 2022, Ms Theresa Lam (the Applicant) lodged an application (the Application) pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act) alleging that Brisbane Shade Solutions Pty Ltd (the Respondent) had dismissed the Applicant from her employment in contravention of Part 3-1 of the Act.
On 25 March 2022, I listed the matter for Hearing of the Jurisdictional Objection raised by the Respondent, being that the Applicant was not dismissed. In the Notice of Listing for this Hearing, I made the following directions (the Directions):
Ms Theresa Lam (the Applicant) is directed to file with the Fair Work Commission, and serve on Brisbane Shade Solutions Pty Ltd (the Respondent), an outline of submissions, witness statements, and other documentary material the Applicant intends to rely on in respect of the Jurisdictional Objection raised in this matter by 4pm on 8 April 2022.
The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements, and other documentary material the Respondent intends to rely on in relation to the Jurisdictional Objection raised in this matter by 4pm on 22 April 2022.
The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent’s witness statements and documents by 4pm on 29 April 2022.
Any party that requests permission to be legally represented at the hearing is directed to file with the Fair Work Commission, and serve on the other party, a brief outline of submissions in support of its request by 4pm on 22 April 2022.
The Applicant did not comply with the above Directions, and the Respondent complied with Direction 2. The Commission compiled a Court Book of the documents exchanged to date in respect of the Application, which was the only exhibit in the matter, that contained:
The Applicant’s Form F8, filed 13 January 2022.
An email from the Applicant to the Commission, sent 7 February 2022.
The Respondent’s Form F8A, filed 24 February 2022.
Submissions of the Respondent, filed 22 April 2022.
The Notice of Listing issued in the matter on 25 March 2022.
Emails exchanged between Chambers and the parties on 13 – 19 April 2022.
On 4 May 2022, I heard the above matter, which was attended by the Mr Giorgio of the Respondent only. The Applicant did not attend the Hearing, despite numerous calls from my Chambers, and an email from my Chambers to the parties which reattached the Notice of Listing and requested the parties’ attendance. The Applicant advised my Chambers via telephone at 10:19am that she would not be attending the hearing for reason of “sickness,” and despite my Chambers’ indication that any adjournment request ought be made to Chambers urgently via email, no correspondence was received following that conversation, and to date. At the conclusion of the Hearing, I delivered an ex tempore decision on the record. The following paragraphs of this decision are an edited transcript of that ex tempore decision.
I make this decision in consideration of all the submissions that have been filed to date, and the brief oral submissions of Mr Giorgio.[1]
I note that in the original Form F8 that was filed by the Application, on two occasions, relevantly at questions 1.2 and 1.3, the Applicant clearly stated that she resigned employment. Such indication of resignation clearly brought into play the question of whether in fact the Applicant had been dismissed or had voluntarily left her employment.
At page 12 of the Court Book, which is exhibit R1 in the proceedings, the Respondent notes its objection to the Form F8 Application by the Applicant on the basis that she was not dismissed, but resigned of her own accord.
Annexed to the submissions of the Respondent in this matter is a copy of the resignation email that was provided by Ms Lam on 30 December 2021. In that resignation email the Applicant states:
“I am writing this message to formally notify you I will be resigning my position at Brisbane Shade and Shutters.
I would like to thank you for your solid leadership and constant support during the past 3 months. Working for you has been a real pleasure. I wish you, the development team, and everyone else at Brisbane Shade and Shutters.
Hopefully, my resignation will not cause too much of an inconvenience for your or the company.
There are a lot of issues in the work place that I want you to know what is really going on in that work place related to Christos which has made be decided [sic] to resigned [sic] I had enough. And you needs [sic] to know how your business is running.”
When one considers that email, there is a certain voluntariness clearly contained in the expression by the Applicant of her resignation. I note that under s.386 of the Act, there is the definition of dismissal, and particularly in subsection (1)(b), it notes that:
“A person has been dismissed if the person has resigned from his or her employment but was forced to do so because of conduct or a course of conduct engaged in by his or her employer.”
Nothing in the materials before me indicates such a course of conduct, and as I have noted, the resignation seems to be entirely voluntary. In those circumstances, I do not consider that the Applicant has satisfied the onus of proof that rests upon her to prove that she has been dismissed and that the resignation was forced.
I do note the Applicant did not attend the Hearing of this matter, but more importantly, the Applicant did not take one step to comply with Directions issued by the Commission for the filing of materials and submissions to advance her case. That failure is best summarised in the communication from my Chambers to the Applicant dated 19 April 2022, at 1:57pm, which was as follows:
“I refer to the above matter, and in particular, to the Directions contained within the Notice of Listing dispatched to you on 25 March 2022, which outlines the timeframe for the filing of your submissions and other documents. That Notice, containing the Directions, is again attached for your reference.
Chambers contacted you via email on 11 April 2022 and 13 April 2022, and attempted to contact you via phone on 13 April 2022 and 19 April 2022 in relation to your non-compliance with Direction 1. Chambers has not received a request for an extension of time for filing those materials, or other communication in reply to this correspondence.
I further draw your attention to Note c) as found in the attached Listing, advising that noncompliance with directions will not be tolerated.
Please be advised that, should you not respond to this communication, file your materials, or attend the Hearing as listed, that your matter may be determined in the absence of your materials and/or attendance, and this may result in your matter being dismissed.
You are required to either:
·file and serve your submissions and other documents as outlined in Direction xxx; or
·advise that you do not wish to file any materials; or
·make a request for an extension of time within which to file your materials, including any reason and evidence to support;
by 4:00pm tomorrow, 20 April 2022.
I confirm that all correspondence with the Commission, including the filing of materials, is to be sent via email to [email].”
I note the Applicant did not even then comply by 4pm on 20 April 2022 with the further chance availed to her to comply with the Directions.
In the above circumstances, I was not minded to accede to the belated request for an adjournment based on ‘sickness’ that was advanced at 10:19am on 4 May 2022, some 19 minutes after the scheduled commencement of this Hearing.
I find that the Applicant was not dismissed by the Respondent, and therefore there is no jurisdiction pursuant to s.365 of the Act for the Applicant to advance her claim.
The Application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr C Giorgio, for the Respondent.
Hearing details:
2022.
May 4.
Sydney (via videoconference).
[1] Transcript, from PN [33].
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