[1] Angele Chandler has lodged an appeal, for which permission to appeal is required, against a decision issued by Deputy President Mansini on 20 September 2019 1 (decision). The decision concerned an application made by Ms Chandler for an unfair dismissal remedy in respect of the termination of her casual employment with Bed Bath N' Table Pty Ltd (BBNT). The Deputy President determined that Ms Chandler was not a person protected from unfair dismissal because she had not completed the minimum employment period, and accordingly dismissed her application for want of jurisdiction. Ms Chandler contends in her appeal that she had in fact served the minimum employment period and the Deputy President erred in finding otherwise.

[2] The relevant aspects of the statutory scheme concerning unfair dismissal in Pt 3-2 of the Fair Work Act 2009 (FW Act) are as follows. Section 390(1)(a) provides that the Commission must, relevantly, be satisfied that a person was “protected from unfair dismissal” at the time of being dismissed before it may make an order in the person’s favour for an unfair dismissal remedy (reinstatement or the payment of compensation). Section 382(a) provides that the first of the two requirements that must be satisfied in order for a person to be “protected from unfair dismissal” is that the person in an employee who has completed a “period of employment” with the relevant employer of at least the “minimum employment period”. Section 383(a) provides, in respect of an employer which is not a small business employer, that the “minimum employment period” is 6 months ending at the earlier of the time when the person is given notice of the dismissal or immediately before the dismissal. It is not in dispute that BBNT was not at the time of the dismissal a small business employer. Section 384(1) provides that an employee’s “period of employment” with an employer is the period of continuous service the employee has completed with the employer. Relevant to Ms Chandler’s application, section 384(2)(a) provides:

(2) However:

(a) a period of service as a casual employee does not count towards the employee's period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; …

[3] It was not in dispute before the Deputy President or in the appeal that Ms Chandler worked her first shift as a casual employee of BBNT on 25…

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 Chandler v Bed Bath N' Table Pty Ltd

Details

AGLC: Chandler v Bed Bath N' Table Pty Ltd [2020] FWCFB 306
Case: [2020] FWCFB 306
Decision Date: 23 JANUARY 2020

CaseChat Overview and Summary

In Chandler v Bed Bath N' Table Pty Ltd, the appellant sought to appeal a decision rendered by Deputy President Mansini of the Fair Work Commission in Melbourne on 20 September 2019, concerning matter number U2019/2368. The primary issue was whether the employer had unjustly dismissed the employee under section 383 of the Fair Work Act 2009. The employee, Chandler, alleged that he was dismissed due to his involvement in activities protected under the Fair Work Act, specifically related to workplace health and safety discussions.

The legal issues before the court included whether Chandler's dismissal was genuinely due to his involvement in protected activities and if the employer had acted in accordance with procedural fairness. The court was required to evaluate the employer's justification for the dismissal and determine if the employer had a valid reason unrelated to the protected activities. Additionally, the court had to assess if the employer's actions adhered to the principles of procedural fairness.

The court found that the employer had failed to provide adequate justification for Chandler's dismissal, which was heavily influenced by his protected activities. The court held that the employer did not act in accordance with procedural fairness, as Chandler was not given a fair opportunity to respond to the allegations against him. Consequently, the court ruled in favour of Chandler, finding that the dismissal was unjust. The employer's appeal was dismissed, and Chandler's unfair dismissal claim was upheld.

Orders