Philasande Dladla v Uconnex Pty Ltd - [2024] FWC 1648

[2024] FWC 1648

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Philasande Dladla
v

Uconnex Pty Ltd

(U2024/163)

DEPUTY PRESIDENT BOYCE

SYDNEY, 24 JUNE 2024

Application for an unfair dismissal remedy – Applicant resigned from her employment in writing – whether Applicant forced to resign by her employer – evidence does not support a finding of forced resignation – no “dismissal” within the meaning of s.386(1)(b) of the Fair Work Act 2009 – unfair dismissal application dismissed for want of jurisdiction.

Introduction

Ms Philasande Dladla (Applicant) has filed an application for an unfair dismissal remedy with the Fair Work Commission (Commission), against her former employer, Uconnex Pty Ltd (Respondent).

The Respondent has raised a jurisdictional objection that it did not “dismiss” the Applicant from her employment. Rather, the Respondent says that the Applicant voluntarily resigned.

The Applicant claims that she was forced to resign on 16 December 2023 and thus “dismissed” within the meaning of s.386(1)(b) of the Fair Work Act 2009 (Act).

I conducted a hearing on 9 April 2024 to resolve the jurisdictional objection (i.e. as to whether or not the Applicant was “dismissed” by the Respondent). At the hearing, the Applicant appeared for herself, and the Respondent was represented (with permission) by Mr Murphy Hawkins, Principal Solicitor, Cogent Legal.[1]

Factual findings

I make the factual findings that follow for the purposes of these proceedings.

The Respondent is a registered National Disability Insurance Scheme (NDIS) provider.

The Applicant was employed by the Respondent on 11 April 2023 as a casual Disability Support Worker. She subsequently accepted the role of Human Resources Compliance Officer (in July 2023) on a casual basis with the Respondent.

In or around early December 2023, the Applicant recruited a worker (New Recruit) to commence work as soon as possible.

On 14 December 2023, Ms Victoria Malou (Case Manager – Melbourne Region), who was tasked with onboarding the New Recruit, identified that the New Recruit had given birth two days prior and was thus not fit to commence work. The New Recruit was advised to contact the Respondent when she was ready to resume working, and the onboarding process being conducted by Ms Malou would then recommence at that time.[2] In other words, the New Recruit did not have her offer of employment withdrawn by the Respondent,[3] and is now working for the Respondent.[4]

On 14 December 2023 (4:39pm), Ms Katherine Dang (Chief Operating Officer),[5] sent an email to the Applicant, Ms Malou, Ms Alice Huang, and Ms Heidi Haddad, which reads:

“Hi HR,
How comes she gave birth and being interviewed at the same time ?
Is HR not aware of it at all ?
Please verify
Thanks
Katherine”

Following Ms Dang’s email, the following responses from the Applicant and Ms Malou ensued:

· From: the Applicant
“Hi Katherine,
I was not aware of this at all. I interviewed her two weeks ago.
And plus in an interview I can only…

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: [2024] FWC 1648
Decision Date: 24 JUNE 2024

CaseChat Overview and Summary

In the case of Philasande Dladla v Uconnex Pty Ltd, the Fair Work Commission considered whether the Applicant, who had resigned from her employment, was "dismissed" within the meaning of s.386(1)(b) of the Fair Work Act 2009. The Respondent, Uconnex Pty Ltd, argued that the Applicant had not been dismissed as she had voluntarily resigned. The Applicant, on the other hand, claimed that she was forced to resign due to conduct by the Respondent that amounted to a dismissal. The Deputy President, Boyce, held a hearing to address the jurisdictional objection and found that the Applicant had not been forced to resign and thus had not been dismissed. The Applicant's employment ended by her own volition when she chose to resign.

The key issue for determination was whether the Applicant's resignation was forced or coerced by the Respondent, which would constitute a dismissal under s.386(1)(b) of the Fair Work Act. The Applicant argued that she had no choice but to resign due to the Respondent's conduct, including allegations of bullying and discrimination. However, the Deputy President found that the evidence did not support the Applicant's claims. The Applicant had not provided any evidence of a specific instruction or recommendation that amounted to an illegal or unethical act, and there was no evidence that the Respondent had taken any action intended to bring the Applicant's employment to an end. The Deputy President concluded that the Applicant had various choices and options available to her, and it was her voluntary decision to resign. Therefore, the Applicant had not been "dismissed" by the Respondent within the meaning of s.386 of the Act, and the Commission had no jurisdiction to hear the unfair dismissal claim.

In light of the above findings, the Deputy President dismissed the Applicant's case for want of jurisdiction.

Orders