DECISION

Fair Work Act 2009
s.365—General protections

Olga Dobrovolskaia
v
AI&E Pty Ltd
(C2021/4469)

DEPUTY PRESIDENT LAKE

BRISBANE, 3 NOVEMBER 2021

Application to deal with a general protections dispute involving dismissal – jurisdictional objection – whether Applicant was dismissed – jurisdictional objection dismissed

[1] Olga Dobrovolskaia (theApplicant) lodged an application with the Fair Work Commission (theCommission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute in relation to the termination of her employment by AI&E Pty Ltd (the Respondent).

[2] By way of background, Aleksei Andreev is the director of the Respondent, which had two employees: the Applicant and her now ex-partner, George Thomas. The latter is also a business partner of Mr Andreev.

[3] The Applicant was employed by the Respondent from 28 September 2020. The Applicant alleges that she was notified on 13 July 2021 that she was to be dismissed, effective as of 16 July 2021. The Respondent asserts that she resigned. The jurisdictional objection was allocated to my Chambers. Directions were issued with respect to the filing of material and the matter was listed for hearing on 23 September 2021.

[4] The Respondent sought to be represented at the hearing, which was not opposed by the Applicant. Granting permission to be represented under s.596 requires the satisfaction of two elements. 1 The first pre-requisite: the presence of one of the criteria under s.596(2), does not immediately invoke the right to representation but rather “involves an evaluative judgment akin to the exercise of discretion.”2 Once that first step is satisfied, the second step “involves consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.”3

[5] The Respondent submitted that the facts of this matter were particularly complex given they involve a Temporary Protection Order (TPO) issued against Mr Thomas, a significant debt dispute (which involves Mr Andreev) between the Applicant and Mr Thomas and the dispute regarding whether the Applicant was forced to resign. Given the complex and unusual facts and Mr Andreev’s request for an interpreter to be present, I was satisfied that that it was appropriate to grant the Respondent permission to be represented. Accordingly, Mr D Chen from NB Lawyers represented the Respondent at the hearing.

Was the Applicant dismissed?

[6] Section 386(1) of the Act relevantly provides thata person has been dismissed if:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) 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.

[7]The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli outlined the relevant authorities with respect to what it means for an employee’s to be terminated at the initiative of the employer. 4 In short, it is…

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: [2021] FWC 6264
Decision Date: 3 NOVEMBER 2021

CaseChat Overview and Summary

Olga Dobrovolskaia filed an application seeking to have a general protections dispute dealt with by the Fair Work Commission (FWC). The dispute centred around her dismissal by AI&E Pty Ltd. The FWC faced a jurisdictional objection regarding whether Ms Dobrovolskaia had indeed been dismissed by the respondent. The question of the applicability of the Fair Work Act 2009 (Cth) was at the forefront of the objection.

The primary legal issue before the court was whether Ms Dobrovolskaia's situation constituted a dismissal within the meaning of the Fair Work Act. The objection hinged on the interpretation of dismissal, specifically whether the termination of Ms Dobrovolskaia's employment by AI&E Pty Ltd was a dismissal or some other form of termination. The court needed to determine if the respondent's actions fell within the definition of dismissal provided by the Act.

The FWC considered the nature of the termination and the surrounding circumstances. The court found that the termination was indeed a dismissal as it aligned with the statutory definition of dismissal. The court was satisfied that the respondent had terminated Ms Dobrovolskaia's employment, and therefore, the objection was dismissed. The court held that the FWC had jurisdiction to hear the application, and the matter was remitted to the FWC for further consideration.

The Fair Work Commission dismissed the jurisdictional objection and found that it had jurisdiction to hear the application. The matter was remitted to the FWC for further consideration of the merits of Ms Dobrovolskaia's general protections dispute.

Orders