Ann Shaw v Royal Taree Operations Pty Ltd - [2024] FWC 1996

[2024] FWC 1996

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ann Shaw
v

Royal Taree Operations Pty Ltd

(U2024/2915)

COMMISSIONER CRAWFORD

SYDNEY, 29 JULY 2024

Application for an unfair dismissal remedy – jurisdictional objection – genuine redundancy – whether reasonable to redeploy – alleged commitment to return to previous role – jurisdictional objection upheld – application dismissed.

Background

On 26 September 2022, Ann Shaw commenced full-time employment with Manning River Hotel Operations Pty Ltd (Manning River) as a chef at the Manning River Hotel. On 8 August 2023, Ms Shaw commenced employment with Royal Taree Operations Pty Ltd (Royal Taree) as head chef at the Royal Hotel Taree. Manning River and Royal Taree are associated entities. There is no dispute that a “transfer of employment” occurred within the meaning of s.22(7)(a) of the Fair Work Act 2009 (FW Act) when Ms Shaw’s employment ended with Manning River and commenced with Royal Taree and her prior service with Manning River was recognised by Royal Taree.

Ms Shaw’s employment with Royal Taree was terminated effective 22 February 2024 by reason of redundancy. The dismissal arose from a change in ownership of the Royal Hotel Taree. The new owners, Everest Hospitality Pty Ltd (Everest Hospitality), decided not to offer permanent employment to any existing employees of Royal Taree. Ms Shaw declined an offer of casual employment from Everest Hospitality.

Ms Shaw filed a Form F2 unfair dismissal application on 14 March 2024. Ms Shaw sought compensation in lieu of reinstatement as a proposed remedy in her application. Ms Shaw indicated the application was not being filed within 21 days of her dismissal taking effect.

Royal Taree filed a Form F3 employer response on 2 April 2024. Royal Taree raised two jurisdictional objections to Ms Shaw’s application. Royal Taree argued Ms Shaw needed an extension of time to file her application because it was not lodged within 21 days of her dismissal taking effect and that an extension of time should not be granted. Royal Taree also argued Ms Shaw’s dismissal was a case of “genuine redundancy” as defined in s.389 of the FW Act.

The first jurisdictional objection appears to have arisen from confusion about how the 21-day filing period is calculated. Given Ms Shaw’s dismissal took effect on 22 February 2024, the 21-day filing period ended at midnight on 14 March 2024. Ms Shaw filed her application at 2:21pm on 14 March 2024, which was prior to the 21-day period ending. Therefore, Ms Shaw mistakenly indicated in her Form F2 application that she had missed the 21-day period. Royal Taree relied on Ms Shaw’s error to argue in its Form F3 that an extension of time was required. Royal Taree did not press this argument after filing its Form F3 response.

I find Ms Shaw’s application was filed within the 21-day period and that an extension of time is not required. I dismiss the first jurisdictional objection.

I subsequently issued directions…

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 1996
Decision Date: 29 JULY 2024

CaseChat Overview and Summary

Ann Shaw filed an unfair dismissal application against Royal Taree Operations Pty Ltd after her dismissal from her position as head chef at the Royal Hotel Taree. The dismissal arose from the sale of the hotel to Everest Hospitality, which decided not to offer permanent employment to any existing employees of Royal Taree. Shaw sought compensation in lieu of reinstatement as a remedy. Royal Taree raised two jurisdictional objections to Shaw’s application: the need for an extension of time to file the application and whether the dismissal was a case of "genuine redundancy." The first objection was dismissed as Shaw's application was filed within the 21-day period. The second objection centred on whether it was reasonable to redeploy Shaw within Royal Taree or an associated entity. The Commission found that while Shaw had evidence suggesting she would return to the Manning River Hotel after the sale, this was inconsistent with the terms of her employment contract, which referred to ongoing full-time employment. The Commission also found it would not have been reasonable for Shaw to be redeployed into a casual role. Therefore, Shaw’s dismissal was a case of "genuine redundancy," and the application was dismissed.

Orders