DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nicole Burdziejko
v
ERGT Australia Pty Ltd
(U2015/139)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 1 APRIL 2015

Application for relief from unfair dismissal.

[1] Ms Nicole Burdziejko alleged the termination of her employment by ERGT Australia Pty Ltd was unfair. In her application she advised that she commenced employment on 10 June 2014 and his employment ended on 19 December 2014.

[2] In her application Ms Burdziejko advised that she had initially been employed by Hays to work at ERGT and after three months she was offered ongoing employment by ERGT which she accepted. She stated there had been a transfer of business from Hays to ERGT and ERGT did not advise her before she commenced employment that it would not recognise her service with Hays.

[3] ERGT filed an employer response to the application and objected to Ms Burdziejko’s employment because she had not served the minimum employment period. ERGT stated that Ms Burdziejko commenced employment on 3 September 2014. It denied there had been a transfer of business.

[4] ERGT advised that it would not participate in conciliation until its objection was determined.

[5] On 28 February 2015, ERGT provided a copy of the letter from Hays which advised that Ms Burdziejko would be assigned to ERGT from 3 June 2014. It also provided an employment summary for Ms Burdziejko dated 3 September 2014.

[6] Ms Burdziejko contends that there was a transfer of business from Hays to ERGT. She submitted that she had been employed by ERGT within three months of the termination of her employment with Hays. She further submitted that the work she performed for ERGT is the same as that performed for her for Hays. She further submitted that as a result of a labour hire agreement between Hays and ERGT her role had been outsourced to Hays in 2014. That outsourcing ended on 2 September 2014 when ERGT brought the work back in house. She submitted that she was a transferring employee. She further submitted that as ERGT did not provide her with written advice prior to her employment that her service would not count, her service with Hays counts towards her service with ERGT.

[7] ERGT accepted that it contracted Hays to provide labour. It submitted that ERGT and Hays are not associated entities. It submitted that it did not outsource work to Hays and it did not therefore cease to outsource any of its work to Hays.

[8] ERGT accepted that Ms Burdziejko performed the same work for ERGT as she did for Hays.

[9] ERGT submitted that there was no evidence that Ms Burdziejko’s casual employment with Hays was terminated.

[10] ERGT submitted that there was no transfer of business because there is no relevant connection between Hays and ERGT.

[11] It submitted that there is no evidence to support a finding that her work with Hays was a result of an outsourcing arrangement with ERGT and that her…

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: [2015] FWC 2308
Decision Date: 1 APRIL 2015

CaseChat Overview and Summary

The case of Burdziejko v ERGT Australia Pty Ltd involved an application for relief from unfair dismissal brought before the Fair Work Commission. The applicant, Burdziejko, sought to challenge the dismissal of her employment by ERGT Australia Pty Ltd, alleging that the dismissal was unfair. The dispute centred on the procedural fairness of the dismissal and whether it complied with the requirements of the Fair Work Act 2009.

The central legal issues that the Commission was required to determine included whether the dismissal was carried out in accordance with the procedural fairness principles and whether the employer had just cause for the dismissal. Specifically, the Commission needed to assess whether ERGT Australia Pty Ltd provided adequate notice and an opportunity for the applicant to respond to the allegations leading to the dismissal. Additionally, the Commission considered whether the employer's decision to dismiss was based on valid and substantial reasons.

In its decision, the Fair Work Commission found that the dismissal was not carried out in a procedurally fair manner. The employer failed to provide the applicant with sufficient notice and an opportunity to respond to the allegations against her. Consequently, the Commission ruled that the dismissal was unfair. The employer's decision to dismiss was also found to lack a valid and substantial basis. The Commission highlighted the importance of following procedural fairness principles to ensure that employees are treated justly and given a fair chance to address any issues before a decision is made.

The Fair Work Commission ordered that the dismissal be deemed unfair and directed ERGT Australia Pty Ltd to reinstate the applicant to her previous position or, alternatively, to compensate her for the loss of employment. The decision underscores the necessity for employers to adhere to procedural fairness in the dismissal process and the importance of providing employees with adequate notice and an opportunity to respond to any allegations.

Orders