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Whirisky v DivaT Home Care

Whirisky v DivaT Home Care

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Case Copied 9 February 2021 30 min read

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[2021] FWC 650

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Miss Karen Whirisky
v
DivaT Home Care
(C2020/7127)

COMMISSIONER HUNT

BRISBANE, 9 FEBRUARY 2021

Application to deal with contraventions involving dismissal – jurisdictional objection – no dismissal.

[1] On 19 September 2020, Ms Karen Whirisky made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (the Act), to deal with a general protections dispute involving dismissal. Ms Whirisky stated that she had been dismissed from her employment with Ms Teina Attard (nee) Hickson on 9 September 2020. It is uncontested that her employment commenced a short time earlier on 22 August 2020.

[2] In its Form F8A – Response to general protections application, the Respondent stated that the correct Respondent entity is ‘DivaT Home Care’, and raised a jurisdictional objection to the application on the grounds that Ms Whirisky was not terminated on the employer’s initiative pursuant to s.386(1)(a) of the Act.

[3] Following the recent Full Court of the Federal Court decision of Coles Supply Chain Pty Ltd v Milford, 1 of 11 September 2020, the Commission must determine whether Ms Whirisky was dismissed before it can exercise powers under s.368 of the Act to deal with a dispute about whether Ms Whirisky was dismissed in contravention of the general protections provisions.

[4] The matter was therefore listed for jurisdiction hearing by telephone on 16 December 2020. Ms Whirisky appeared and gave evidence on her own behalf. Mr Guteridge of NB Lawyers was granted leave to appear on behalf of the Respondent in light of the complexity of the matter and the jurisdictional objection to be determined in accordance with the recent Milford decision. Ms Teina Attard gave evidence on behalf of the Respondent.

[5] This decision deals only with the jurisdictional objection to be determined.

Legislation

[6] Section 365 of the Act provides as follows:

“365 Application for the FWC to deal with a dismissal dispute

If:

(a) a person has been dismissed; and

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”

[7] The meaning of ‘dismissed’ is provided at s.386:

“Meaning of dismissed

(1) A 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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment…

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 650
Decision Date: 9 FEBRUARY 2021

CaseChat Overview and Summary

The matter of Whirisky versus DivaT Home Care came before the court, with Whirisky, an employee, bringing proceedings against DivaT Home Care, his employer, seeking resolution for alleged contraventions. The dispute centred on Whirisky's claim that his employer had breached workplace regulations by dismissing him without proper cause. The Fair Work Commission was the court tasked with examining the matter.

The court had to decide whether it possessed the jurisdiction to hear Whirisky's claims, given that the central issue was whether a dismissal had occurred. If no dismissal was found, the court would lack the authority to proceed with the case. The primary legal issue, therefore, was whether the tribunal had the power to entertain the application based on the presence or absence of a dismissal.

Upon reviewing the evidence presented, the court determined that no dismissal had taken place. It was established that Whirisky had not been terminated from his employment but rather had been placed on unpaid leave. Consequently, the court found that it did not have the jurisdiction to address the matter as there was no dismissal to adjudicate. The application was dismissed due to this jurisdictional defect.

The court ruled that Whirisky's application could not proceed as there was no dismissal involved. The court's decision was based on the clear evidence that Whirisky had been placed on unpaid leave rather than being dismissed, which meant the tribunal lacked the authority to entertain the claims.

Orders