DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bernardo Rivera
v
Geora Ltd T/A Geora
(U2020/1931)

DEPUTY PRESIDENT BOYCE

SYDNEY, 9 NOVEMBER 2020

Application for an unfair dismissal remedy — minimum period of employment — whether employer was a small business — whether employer was an associated entity of another for the purposes of calculating number of employees — where one entity is found to not be an associated entity of another — where employer found to be a small business — application dismissed.

Introduction

[1] On 20 February 2020, Mr Bernardo Rivera (Applicant) filed a Form F2 with the Fair Work Commission (Commission), being an application for an unfair dismissal remedy (Application). By way of his Application, the Applicant claims that:

(a) he was dismissed from his employment with A.C.N. 630 167 618 Ltd; Full Profile Pty Ltd; AgriDigital; Geora (which the Applicant asserts are all “related entities” entities under the Corporations Act 2001 (Corporations Act));

(b) his dismissal took effect on on 30 January 2020; and

[2] On 3 March 2020, Geora Ltd T/A Geora (Respondent or Geora) filed a Form F4 with the Commission (Response). By way of that Response, the Respondent claims that:

(a) the Respondent was actually the Applicant’s employer; and

(b) the Respondent sought to raise two jurisdictional objections to the Application:

i. the Applicant was not “dismissed” within the meaning of s.386 of the Act (Dismissal Objection); and/or in the alternative

ii. the Applicant did not meet the “minimum employment period” within the meaning of s.383 of the Act (Minimum Employment Period Objection).

[3] Despite raising two jurisdictional objections, only the Minimum Employment Period Objection really needs to be determined in the first instance. Indeed, if the Respondent is held to be a small business employer, the Applicant would not have completed the minimum employment period and would therefore not qualify to make any application for an unfair dismissal remedy. If that is the case, then the Dismissal Objection is of no event.

[4] On 19 May 2020, I held a hearing (by telephone) regarding the substantive application. Ms Amanda Both (Unfair Dismissals Direct) appeared with permission for the Applicant. Ms Bridie Ohlsson (Chief Executive Officer of the Respondent) appeared for the Respondent. I note that Ms Ohlsson was assisted in the preparation of her submissions by Ms Dianne Banks (Solicitor, Gilbert + Tobin), and that such assistance falls within the broad interpretation of “representation” within the meaning of s.596 of the Act. 1 I granted both parties permission to be legally represented generally in the proceedings, having regard to the matters required to be considered under s.596 of the Act, notably that the Objections to the Application go to matters of jurisdiction (which are inherently complex),2 and that the assistance of…

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 4396
Decision Date: 9 NOVEMBER 2020

CaseChat Overview and Summary

The applicant, Bernardo Rivera, sought a remedy for unfair dismissal against his former employer, Geora Ltd trading as Geora. The dispute arose from Rivera's termination of employment, and he contended that the dismissal was unjust. The case was heard in the Fair Work Commission, the tribunal responsible for handling employment-related disputes under Australian law.

The primary legal issues before the court were whether Geora Ltd was a small business for the purposes of the unfair dismissal provisions and whether it was an associated entity of another entity for the purposes of calculating the number of employees. If Geora Ltd was found to be a small business, it would be exempt from certain unfair dismissal provisions. Additionally, determining whether it was an associated entity of another entity was crucial for calculating the total number of employees, which could affect the applicability of the small business exemption.

In its reasoning, the Commission first examined the definition of a small business under the Fair Work Act. It found that Geora Ltd qualified as a small business, having fewer than fifteen employees. The Commission then assessed whether Geora Ltd was an associated entity of another entity, a determination that would have affected the total number of employees. After a detailed analysis, the Commission concluded that Geora Ltd was not an associated entity of another entity. Consequently, the small business exemption applied, and the dismissal did not fall under the provisions for unfair dismissal. Therefore, Rivera's application for an unfair dismissal remedy was dismissed.

No further orders were made beyond the dismissal of Rivera's application.

Orders