Quinn Carnegie v Services Australia - [2023] FWC 3083

[2023] FWC 3083

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Quinn Carnegie
v

Services Australia

(C2023/5339)

DEPUTY PRESIDENT BINET

PERTH, 22 DECEMBER 2023

Application to deal with contraventions involving dismissal

On 31 August 2023, Ms Quinn Carnegie (Ms Carnegie) filed an application (Application) pursuant to section 365 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging that Services Australia (Respondent) contravened the general protection provisions of the FW Act by dismissing her from her employment.

On 4 October 2023, Services Australia filed a Form F8A – Response to General Protections Application alleging Ms Carnegie was not dismissed by Service Australia and had in fact resigned (Jurisdictional Objection).

The Application was subsequently allocated to my chambers.

In Coles Supply Chain Pty Ltd v Milford[1] (Coles Decision) the Full Court of the Federal Court held that where a respondent submits that the applicant to a section 365 application was not dismissed, as is the case here, the FWC must first determine whether the person was dismissed.

Directions for the filing of materials in advance of the Hearing were issued to the parties on 24 October 2023 (Directions).

There were a number of delays which prevented the Jurisdictional Objection being heard.

On 1 November 2023, Services Australia emailed Chambers advising that the parties had engaged in without prejudice discussions and requested that the Directions to be either temporarily vacated or extended to allow the parties to explore a resolution to the matter in dispute.

The parties were granted a one week extension to comply with the Directions. Amended Directions were issued on 3 November 2023.

On 9 November 2023 Services Australia advised Chambers that an offer had been put to Ms Quinn, however the matter was not yet resolved.

Ms Carnegie failed to file her materials in accordance with the Amended Directions on 9 November 2023. On 10 November 2023 Ms Carnegie was notified of her non-compliance and invited to make submissions as to why the Application should not be dismissed and to provide evidence supporting those reasons.

On 14 November Services Australia advised Chambers that it had not received any materials or correspondence from Ms Carnegie.

In the absence of Ms Carnegie filing any materials on 15 November 2023, Chambers asked Services Australia to file any materials they wished to be considered in determining the Jurisdictional Objection. The parties were advised that in the absence of any materials being filed by Ms Carnegie the Jurisdictional Objection would be determined based on the materials before the Deputy President.

Evidence

The Amended Directions required Ms Carnegie to file an outline of submissions, a signed and dated witness statement from any witness she intended to call, a copy of any authorities on which she relied and a copy of any document on which she relied by 4pm on 9 November 2023. As stated above,…

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: [2023] FWC 3083
Decision Date: 22 DECEMBER 2023

CaseChat Overview and Summary

Quinn Carnegie filed an application under section 365 of the Fair Work Act 2009, alleging that Services Australia dismissed her in contravention of the general protection provisions of the Act. Services Australia contested the allegation, arguing that Ms Carnegie had not been dismissed but had instead resigned. The Fair Work Commission, under Deputy President Binet, was tasked with determining whether Ms Carnegie was indeed dismissed by Services Australia, as this was a prerequisite for the Commission to proceed with the application. The central legal issue before the Court was whether Ms Carnegie's resignation was voluntary or forced by Services Australia's conduct, thereby constituting a dismissal under the Act.

The Court examined the definition of 'dismissal' as outlined in section 386 of the Fair Work Act, which includes situations where an employee is forced to resign due to the employer's conduct. Ms Carnegie had the burden of proving that her resignation was not voluntary and that Services Australia forced her to resign. However, the evidence presented by Services Australia indicated that they were attempting to support Ms Carnegie by addressing performance issues and accommodating her health-related absences. There was no evidence suggesting that Services Australia's actions were intended to end Ms Carnegie's employment or had the probable result of forcing her resignation. The Court concluded that Ms Carnegie had not been dismissed by Services Australia and thus upheld the jurisdictional objection. Consequently, the application was dismissed.

The Fair Work Commission issued an order dismissing Ms Carnegie's application on the grounds that she had not been dismissed by Services Australia, as per the definition and requirements of the Fair Work Act. This decision effectively closed the case, as the Commission found no basis to proceed with the application due to the lack of a dismissal as defined by the Act.

Orders