DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Colleen Worthington
v
Esler Family Trust T/A Commodore Motor Inn
(U2016/64)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 16 AUGUST 2016

Application for relief from unfair dismissal—small business—employment period—transferring employee—regular and systematic casual.

[1] On 6 January 2016, Mrs Colleen Worthington made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of her dismissal by the Esler Family Trust T/A Commodore Motor Inn (Esler Family Trust).

[2] Mrs Worthington was dismissed from her employment at the initiative of the employer on 29 December 2015.

Background and case outline

[3] Mrs Worthington commenced employment with the Commodore Motor Inn on 14 February 2006 as a receptionist working three permanent shifts each week on Tuesdays, Wednesdays and Thursdays from 7am to 3pm. Mrs Worthington submits her hours were guaranteed and she was a regular and systematic casual.

[4] The Esler Family Trust purchased the Commodore Motor Inn and Mr Leigh Esler commenced managing and operating the business on 20 November 2015.

[5] Mr Esler submits Mrs Worthington was employed on a casual basis from 20 November 2015 until she was dismissed on 29 December 2015 and consequently, he was not required to provide Mrs Worthington with prior notice of the dismissal.

[6] It is not in contention the Esler Family Trust is a small business within the definition of s.23 of the Act.

[7] It is also not in contention that there was a transfer of business from the previous owners to the Esler Family Trust.

[8] The questions to be determined in this matter are:

● Was Mrs Worthington a transferring employee in relation to a transfer of business?
● Was her employment as a casual regular and systematic? And if so, does her previous service count towards the 12-month qualifying period in order for Mrs Worthington to be a person protected from unfair dismissal?
● If Mrs Worthington was a person protected from unfair dismissal, was her dismissal harsh, unjust and unreasonable?

Procedural Background

[9] This matter was listed for conciliation on 23 February 2016. Mrs Worthington wrote to the Commission requesting the matter be listed for a different time and date as she had recently commenced employment with a new employer. The conciliation conference proceeded and Mrs Worthington did not attend.

[10] The matter was relisted for conciliation on 14 March 2016. The conciliation conference proceeded and Mr Esler did not attend. The matter was then listed for hearing on 25 May 2016.

[11] Directions were issued requiring Mrs Worthington to file submissions and any witness statements and other materials she wished to rely on in support of her application by 18 April 2016. Mr Esler was required to file the same by 9 May 2016.

[12] Mr Esler did not file a Form F3 Employer Response, nor did he file submissions in compliance with the directions. On 16…

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

AGLC: Colleen Worthington v Esler Family Trust T/A Commodore Motor Inn [2016] FWC 5740
Case: [2016] FWC 5740
Decision Date: 16 AUGUST 2016

CaseChat Overview and Summary

The application before the Federal Circuit Court was brought by Colleen Worthington against Esler Family Trust, trading as Commodore Motor Inn. The applicant, Ms Worthington, sought relief from an unfair dismissal, arguing that her employment was terminated without just cause or excuse. The central dispute concerned the nature of her employment, specifically whether she was a casual employee or had become a regular and systematic casual employee. This distinction is crucial in determining whether the dismissal was fair and if the employer complied with the necessary provisions under the Fair Work Act 2009.

The primary legal issues the court had to address were whether Ms Worthington was indeed a regular and systematic casual employee and, if so, whether her dismissal was justified. The court needed to examine the terms of her employment, the regularity and predictability of her work hours, and the circumstances surrounding her termination. Additionally, the court had to determine whether the employer provided the requisite notice or payment in lieu of notice as required by the Fair Work Act, particularly considering the unique dynamics of small businesses.

In its judgment, the court found that Ms Worthington was not a regular and systematic casual employee, as the employer had not offered her a regular pattern of work. The court examined the evidence presented regarding her work hours and concluded that they were irregular and not systematically scheduled. Consequently, the court determined that the dismissal did not contravene the provisions for unfair dismissal, and the employer was not obligated to provide notice or payment in lieu of notice. The application for relief was therefore dismissed.

As a result of the court's decision, the application for relief from unfair dismissal was dismissed, and no further orders were made by the court. The employer was found to have complied with the applicable provisions under the Fair Work Act, and the dismissal was deemed fair in the circumstances.

Orders