REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tiffany Causer
v
Refined Learning Pty Ltd T/A ABC Refined Learning
(U2021/1955)

DEPUTY PRESIDENT BOYCE

SYDNEY, 26 JULY 2021

Application for an unfair dismissal remedy – jurisdictional objections – applicant a volunteer and not an employee – respondent a small business employer who applied the Small Business Fair Dismissal Code – both jurisdictional objections dismissed – reason for applicant’s dismissal arises from her querying her underpayment of wages – no valid reason for dismissal – no procedural fairness – compensation awarded.

Introduction

[1] On 9 March 2021, Ms Tiffany Causer (Applicant) filed an application for an unfair dismissal remedy with the Fair Work Commission (Commission), against her former employer, Refined Learning Pty Ltd T/A ABC Refined Learning (Respondent).

[2] The Applicant was terminated by the Respondent on 22 February 2021. She commenced her employment with the Respondent in November 2019. Ms Fiona Wen, Director/Owner, purchased the Respondent’s business on or around 1 August 2020. There is no suggestion that the Applicant's service with the Respondent has been other than continuous for the purposes of s.22 of the Fair Work Act 2009 (Act).

[3] The Applicant claims that her dismissal by the Respondent was “unfair” within the meaning of Part 3-2 of the Act. In opposing the claim, the Respondent raises two jurisdictional objections.

[4] On 14 July 2021 a telephone hearing was conducted to resolve the jurisdictional objections, and the merits of the Application. At the hearing, Mr Garry Dircks, of Just Relations Consultants, appeared with permission for the Applicant. 1 Ms Wen appeared for the Respondent (with the aid of an interpreter).

Evidence before the Commission

[5] The Form F2 filed by the Applicant alleges that her dismissal was for no valid reason, and was effected absent procedural fairness.

[6] The Form F3 filed by the Respondent raises two jurisdictional objections. Firstly, that the Applicant was not an employee of the Respondent, but a “volunteer”. Secondly, that the Respondent is a small business employer and, in dismissing the Applicant, complied with the Small Business Fair Dismissal Code.

[7] In explaining those objections in the Form F3, the Respondent states:

“Tiffany [the Applicant] is a volunteer in our tutoring centre (sic) is not an employee.”

“Tiffany is a volunteer in our tutoring centre from older principal. When we started running here, she already voluntary here.”

“We are a small business with only two full-time employees, others are all casual and no part-time employees here. We always complied with the Small Business Fair Dismissal Code very well.”

[8] Further or in the alternative, as to the merits of the Application, the Respondent says that the Applicant was given warnings about her unauthorised mobile telephone use whilst tutoring in classes, various parents complained about her work, and she regularly failed to answer the questions of students she was tutoring or teaching (being questions that she should have answered).

[9]

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 4357
Decision Date: 26 JULY 2021

CaseChat Overview and Summary

In the case of Tiffany Causer versus Refined Learning Pty Ltd trading as ABC Refined Learning, the primary issue was whether the applicant, Tiffany Causer, was entitled to an unfair dismissal remedy. Causer, a volunteer for the respondent, Refined Learning, sought compensation for her dismissal. The respondent argued that Causer was not an employee, and thus, the application should be dismissed on jurisdictional grounds. Furthermore, as a small business employer, Refined Learning contended that it had applied the Small Business Fair Dismissal Code appropriately.

The central legal issues revolved around the nature of Causer’s employment status and whether the dismissal was justified. The court had to determine if Causer was indeed an employee or merely a volunteer, as this would impact the applicability of the unfair dismissal provisions. Additionally, the court examined whether the dismissal was related to Causer’s query regarding underpayment of wages, and if the dismissal process adhered to procedural fairness. It was also necessary to assess if there were any valid reasons for the dismissal.

The court found that Causer was indeed a volunteer rather than an employee, yet it still had jurisdiction to hear the application due to the nature of the dispute. The dismissal arose from Causer's inquiry about her underpayment, which the court deemed an unfair reason. The court further concluded that procedural fairness was not observed in the dismissal process, and there were no valid grounds for terminating Causer’s involvement. As a result, the court awarded compensation to Causer for the unfair dismissal.

The court dismissed the jurisdictional objections raised by Refined Learning and determined that Causer was entitled to compensation. The reasons for the dismissal were found to be unfair, and procedural fairness was not observed. Consequently, the court ordered Refined Learning to compensate Causer for the unfair dismissal.

Orders