Colin Lambert v Skara Smallgoods Pty Ltd - [2023] FWC 3091

[2023] FWC 3091

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Colin Lambert
v

Skara Smallgoods Pty Ltd

(C2023/5778)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 24 NOVEMBER 2023

Application to deal with contraventions involving dismissal – jurisdiction – whether dismissed – probationary period – whether employed for a specified period of time – unqualified right to terminate inside probationary period – jurisdictional objection dismissed

On 20 September 2023 Colin Lambert (Mr Lambert or the applicant) made a general protections application to the Commission under s 365 of the Fair Work Act 2009 (Cth) (FW Act).

Mr Lambert’s application is against his former employer Skara Smallgoods Pty Ltd (Skara, the respondent or the employer). Mr Lambert claims that he exercised a workplace right to make a complaint about a fellow employee and alleges that he was dismissed on that account in contravention of the FW Act.

The respondent opposes the application. It filed a response on 12 October 2023 raising a jurisdictional issue. It claims that Mr Lambert was not dismissed within the meaning of the FW Act because his employment was not continued beyond a three-month probationary period.

The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford[1] requires applications under s 365 to be within jurisdiction before the Commission can exercise powers conferred by s 368. It is thus necessary to determine the jurisdictional issue if Mr Lambert’s application is to proceed further.

I issued directions on 27 October 2023.

I heard the jurisdictional matter by video on 17 November 2023. Parties were given until 20 November to file final written submissions.

Mr Lambert was self-represented. Skara was represented (with permission) by a paid agent.

In addition to documentary material filed, I heard oral evidence from two persons:

· Colin Lambert (applicant); and

· Anthony Skara (Director).

Evidence on the jurisdictional issue is largely uncontested. In dispute are the conclusions to be drawn from the evidence.

Facts

I make the following findings.

Skara is a smallgoods manufacturer in the meat industry based in Lobethal in the Adelaide Hills. Although a business of relatively small scale, it is not a small business within the meaning of the FW Act as it employs fifteen or more persons.

Mr Lambert is a local resident.

Employment at Skara

In May 2023 Mr Lambert was interviewed for a job as a packing room process worker. When interviewed Mr Lambert was advised that new employees are engaged on a three-month trial (probation) period. Mr Lambert’s application was successful.

Mr Lambert’s first day of employment was 17 May 2023.

There is some dispute as to whether Mr Lambert completed an induction in the first week of employment or had done so prior. On this, I prefer Mr Skara’s evidence. I find that a significant portion of the first week concerned a site and health and safety induction and other administrative matters.

However, I also find, based in part on Mr Lambert’s evidence, that Mr Lambert…

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: [2023] FWC 3091
Decision Date: 24 NOVEMBER 2023

CaseChat Overview and Summary

The applicant, Colin Lambert, filed an application against Skara Smallgoods Pty Ltd under the Fair Work Act 2009, alleging he was dismissed in contravention of the Act. The respondent raised a jurisdictional objection, arguing that Mr Lambert was not dismissed because his employment was terminated at the end of a three-month probationary period. The court had to decide if Mr Lambert's employment was for a specified period and whether it terminated at the end of the probationary period.

The court found that the employment contract provided for a probationary period and allowed for termination by either party at any time, which meant it was not a contract for a specified period as defined by the Act. Consequently, the exclusion in s 386(2)(a) did not apply. The court also noted that even if it had to determine when Mr Lambert's employment actually terminated, there was evidence that employment continued for two weeks beyond the probationary period before it was ended, which would likely not support a finding of no dismissal.

The court concluded that Mr Lambert was dismissed within the meaning of the Act as his employment was terminated on the employer's initiative. The jurisdictional objection was dismissed, and the application was within the Commission's jurisdiction.

The court ordered that the matter proceed to a conference for the purpose of conciliating the dispute. This decision only determined that Mr Lambert was dismissed; it did not address the merits of his substantive claim. An order will be issued in conjunction with the publication of this decision.

Orders