Chad Edwards v Bamboo 61 Pty Ltd - [2023] FWCFB 189

[2023] FWCFB 189

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Chad Edwards
v

Bamboo 61 Pty Ltd

(C2023/2621)

VICE PRESIDENT ASBURY
DEPUTY PRESIDENT GOSTENCNIK DEPUTY PRESIDENT CLANCY

BRISBANE, 18 OCTOBER 2023

Appeal against decision [[2023] FWC 865] of Deputy President Beaumont at Perth on 20 April 2023 in matter number U2022/12327 - permission to appeal refused.

Introduction

Chad Edwards (the Appellant) has applied for permission to appeal, and if granted seeks to appeal, against a decision made by Deputy President Beaumont on 20 April 2023 (the Decision)[1] in which the Deputy President found that the Appellant was not a person protected from unfair dismissal because he had not completed the minimum employment period prescribed by s.383 of the Fair Work Act 2009 (Cth) (the Act).

The Appellant was employed by Bamboo 61 Pty Ltd (the Respondent) as a Software Engineer. The Appellant’s employment began on 4 April 2022, and he was given notice of his dismissal with immediate effect on 7 December 2022. The Appellant’s period of continuous service with the Respondent was just over 8 months and his annual salary was $180,000.00. The Respondent contended the Appellant was not a person protected from unfair dismissal on two bases. First, the Respondent was a small business employer (i.e. an employer with fewer than 15 employees on 7 December 2022), and the Appellant’s period of continuous service was less than a year. Second, the Appellant earned more than the high-income threshold and was not covered by a modern award or enterprise agreement. The Deputy President determined the Respondent was a small business employer and that the Appellant had not completed the required minimum employment period. In the circumstances the Deputy President considered it unnecessary to deal with the second basis the Respondent advanced.

In so doing, the Deputy President considered the corporate structure within which the Respondent lay. The Respondent had an associated entity called Bamboo 1 Ltd (listed in the USA), which in turn was an operational subsidiary of Bamboo Holdings Limited. The Respondent produced payroll summaries, showing there were 6 employees employed within this corporate structure on 7 December 2022 – namely 5 employed by the Respondent and one employed by the associated entity, with the holding entity having no employees. The Deputy President had regard to the Respondent’s acknowledgement that around 7 December 2022, it had been engaging a number of entities and individuals for ‘routine or regular work or services’, together with the Respondent’s evidence about the various contractual relationships and the names of particular individuals it had engaged to perform work.

The Deputy President relevantly recounted the Appellant’s contentions that several workers he named in his witness statement were employees and to the extent possible on the evidence, the Deputy President attempted to discern whether any were employees of the Respondent or an associated entity at the time of the Appellant’s dismissal.

The Deputy President set out how the existence of employment (a contract for services) may be…

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.

Continue reading Chad Edwards v Bamboo 61 Pty Ltd

Details

AGLC: Chad Edwards v Bamboo 61 Pty Ltd [2023] FWCFB 189
Case: [2023] FWCFB 189
Decision Date: 18 OCTOBER 2023

CaseChat Overview and Summary

Chad Edwards, the appellant, applied for permission to appeal against a decision made by Deputy President Beaumont in which the Deputy President found that Edwards was not a person protected from unfair dismissal as he had not completed the minimum employment period prescribed by s.383 of the Fair Work Act 2009 (Cth). The respondent, Bamboo 61 Pty Ltd, contended that Edwards was not a protected person because he had not completed the requisite minimum employment period. The Deputy President found that the respondent was a small business employer and that Edwards' period of continuous service was less than a year. The Deputy President did not find it necessary to consider the second basis the respondent advanced.

The appellant's grounds of appeal included that the Deputy President erred by concluding the respondent was a small business employer, that the Deputy President failed to decide that the appellant was covered by the Professional Employees Award 2020, and that the Deputy President denied the appellant procedural fairness by refusing a request from him that he be permitted to read aloud his witness statement under oath. The appellant also submitted that it was in the public interest to grant permission to appeal as the appeal raised important issues relating to workplace bullying and customer privacy, there had been a significant financial impact on him, strategic company structuring that allows unethical practices should not continue, and employees require protection from the power imbalance in employment relationships.

The Full Bench found that the Deputy President's findings in relation to the respondent being a small business employer were entirely open based on the evidence from the respondent's Chief Executive Officer. The Full Bench also found that the Deputy President did not err by failing to determine that the appellant was covered by the Professional Employees Award 2020, as once the Deputy President had concluded that the respondent was a small business employer and the appellant had not completed the required one year minimum employment period, it was not necessary to determine the second basis on which the respondent contended the appellant was not protected from unfair dismissal. Finally, the Full Bench found that the appellant's assertion that he was denied procedural fairness was baseless.

The Full Bench concluded that the appellant had failed to advance any matter disclosing appealable error in the Decision and that there was no basis to conclude he was denied procedural fairness. Absent any identified appealable error, the appellant's public interest arguments did not persuade the Full Bench that it was in the public interest for permission to appeal to be granted. The Full Bench ordered that permission to appeal was refused.

Orders