DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Phyllis Dodd
v
Thomas & Naaz Pty Ltd
(U2020/10882)

DEPUTY PRESIDENT BOYCE

SYDNEY, 18 DECEMBER 2020

Application for an unfair dismissal remedy — whether applicant was dismissed — resignation of applicant — applicant alleges forced resignation through conduct of the employer — Fair Work Act 2009 (Cth), ss 386(1)(a), 386(1)(b) — no dismissal — application for unfair dismissal remedy dismissed.

Introduction

[1] On 11 August 2020, Mrs Phyllis Dodd (Applicant) filed a Form F2 with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). The Applicant claims that she was dismissed from her employment with Thomas & Naaz Pty Ltd (Respondent) on 23 March 2020, and that her dismissal was “unfair” within the meaning of Part 3-2 of the Fair Work Act 2009 (Act).

[2] On 27 August 2020, the Respondent filed a Form F3 (Response). The Respondent asserts that the Applicant was not “dismissed” within the meaning of s.386 of the Act.

[3] Following the receipt of submissions and evidence in accordance with directions made, I held a hearing by telephone to resolve the Application. Mr D O’Sullivan of Counsel, instructed by Mr Brian Dodd (Solicitor, Rishworth Dodd and Co), appeared for the Applicant. Mr P Moorhouse of Counsel, instructed by Mr S Marriott (Solicitor, Moray & Agnew Lawyers), appeared for the Respondent.

[4] Having had regard to the evidence and submissions before me, I have determined that the Applicant was not “dismissed” within the meaning of the Act. My reasons for this decision follow.

Representation by a lawyer or paid agent

[5] Both parties sought to be represented by a lawyer in this matter. Neither party opposed the other being represented. Pursuant to the discretion afforded to me under s.596 of the Act, I granted such permission to both parties. I did so having had regard to the fact that the proceedings concerned a question of “dismissal” (which is a kind of matter that has been considered by this Commission to be “complex”). 1 Based upon this complexity, I determined the hearing would be conducted in a more efficient manner with the parties being legally represented.

Background

[6] The relevant facts appear to me to be uncontested despite both parties having cross-examined witnesses. I surmise those facts as follows:

(a) The Respondent is a company that operates across four separate medical practices in Sydney’s north-western region, being:

(i) The Windsor Family Practice (Windsor Site);

(ii) The Ponds Family Medical Practice (Ponds Site);

(iii) The Galston Family Practice (Galston Site); and

(iv) MacKenzie House Specialist Centre.

(b) From May 2018, the Applicant was employed by the Respondent as a Receptionist. The Applicant was engaged on a casual basis but worked a regular and systemic shift pattern. The Applicant primarily worked at the Galston Site.

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: [2020] FWC 6783
Decision Date: 18 DECEMBER 2020

CaseChat Overview and Summary

Phyllis Dodd applied to the Fair Work Commission for an unfair dismissal remedy, asserting that she was forced to resign by the conduct of her employer, Thomas & Naaz Pty Ltd. The case involved a dispute regarding whether Ms Dodd was dismissed from her employment, a crucial determination under the Fair Work Act 2009 (Cth). The primary issue the Commission needed to decide was whether Ms Dodd's resignation constituted a dismissal, particularly in light of her claim that she was effectively forced to resign due to her employer's conduct.

The Fair Work Commission carefully considered the evidence and arguments presented by both parties. It was essential to determine if the circumstances amounted to a dismissal under sections 386(1)(a) or 386(1)(b) of the Fair Work Act 2009 (Cth). The Commission examined the nature of Ms Dodd's resignation, the employer's conduct, and whether there was an element of coercion that would classify her departure as a dismissal. Ultimately, the Commission found that Ms Dodd's resignation was not coerced to the extent that it constituted a dismissal. The evidence did not support the claim that she was forced to resign due to the employer's actions.

Based on its findings, the Fair Work Commission dismissed Ms Dodd's application for an unfair dismissal remedy. The Commission concluded that there was no dismissal as defined by the Fair Work Act, and thus, no unfair dismissal had occurred. Consequently, Ms Dodd's application was unsuccessful. The decision highlighted the importance of clear evidence in establishing whether a resignation was genuinely voluntary or the result of employer misconduct.

Orders