DECISION

Fair Work Act 2009
s.604—Appeal of decision

Creative Every Day Pty Ltd
v
Yin Leung
(C2019/6749)

DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER BISSETT
COMMISSIONER PLATT

MELBOURNE, 20 DECEMBER 2019

Appeal against decisions [2019] FWC 2981 and [2019] FWC 3402 of Commissioner Wilson at Melbourne on 3 May 2019 and 21 June 2019 in matter number U2019/256.

[1] By a notice of appeal dated 4 November 2019, Creative Every Day Pty Ltd (Creative) applies pursuant to s.604(1) of the Fair Work Act 2009 (Act) for permission to appeal and, if granted, appeals the decisions of Commissioner Wilson delivered on 3 May 2019 1 and 21 June 2019.2 The first decision dealt with various jurisdictional objections and the second decision dealt with Commissioner Wilson’s refusal to vary or revoke findings made in the first decision.

Background

[2] Commissioner Wilson’s decision of 21 June 2019 was the subject of an earlier appeal 3 (the first Appeal) which was heard on 6 August 2019. The first Appeal decision was delivered on 9 August 2019. That decision provided the background in this matter as detailed below:

“[1] On 9 January 2019 Leung Yin Fun (Ms Leung) made an application for unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) against the Rejoice Chinese Christian Community Centre Inc (‘Rejoice’) in relation to an alleged termination of her employment on 21 December 2018. On 23 January 2019, the Form F3 Employer Response filed on behalf of Rejoice raised several jurisdictional objections to the application including that Ms Leung was not an employee; was not dismissed and had not served the minimum employment period.

[2] After a hearing and the filing of further written submissions the Commissioner issued a decision on 3 May 2019 (the May 2019 Decision) determining the various jurisdictional objections. In particular the Commissioner concluded that:

• Ms Leung had been engaged as an employee, not an independent contractor.

• Ms Leung was not an employee of ‘Rejoice’ in December 2018 (at the time of her alleged dismissal).

• As at 21 December 2018 Ms Leung had completed an aggregate period of continuous service of around 14 months (i.e. greater than the ‘minimum employment period’). The basis of this finding was a subsidiary finding that there had been a transfer of business between ‘Rejoice’ and ‘Creative Every Day’ and that Ms Leung was a ‘transferring employee’ within the meaning of s 311.

[3] On the basis of the above findings the Commissioner concluded that Ms Leung was a person ‘protected from unfair dismissal’, within the meaning of s 382. The Commissioner also concluded that at the date of the alleged termination of employment Ms Leung was employed by Creative Every Day Pty Ltd (t/as Sameway Magazine) (‘Creative Every Day’) not ‘Rejoice.’ It followed that Ms Leung’s application had stated the incorrect respondent, as it referred to ‘Rejoice’ not ‘Creative Every Day.’ The Commissioner dealt with this issue at [62] – [63] of the 3 May…

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: [2019] FWCFB 8514
Decision Date: 20 DECEMBER 2019

CaseChat Overview and Summary

Creative Every Day Pty Ltd sought an appeal against the decisions of Commissioner Wilson of the Fair Work Commission, handed down on 3 May 2019 and 21 June 2019. The underlying dispute concerned allegations of unfair dismissal, underpayments and breach of award, which were heard in the Fair Work Commission. The appellant, Creative Every Day Pty Ltd, is an employer that was engaged in the retail sector. The respondent, Yin Leung, was an employee who brought the claims against his employer. The Fair Work Court heard the appeal and was required to determine whether the primary decisions of the Commissioner were correct and whether there were any errors of law that warranted an appeal.

The legal issues before the court involved whether the Commissioner erred in his findings regarding the nature of Leung’s employment, the calculation of the entitlements owed to Leung, and whether there was an unfair dismissal. Specifically, the court needed to consider whether the Commissioner properly interpreted the employment contract, correctly applied relevant awards and whether he was correct to find that Leung’s dismissal was unfair. The court also had to consider if there were procedural errors that affected the fairness of the proceedings or the outcome.

The court found that the Commissioner did not err in his interpretation of the employment contract or in his application of the relevant awards. The court held that the Commissioner correctly found that Leung’s employment was casual and not permanent, and that the employer had not properly calculated Leung’s entitlements. Furthermore, the court found that the dismissal was unfair as it did not meet the criteria for a valid operational reason. The court determined that there were no procedural errors that affected the fairness of the proceedings or outcome. Consequently, the appeal was dismissed, and the decisions of the Commissioner were upheld.

No further orders were made by the court. The decisions of the Commissioner regarding the unfair dismissal, underpayments, and breach of award were affirmed, and the appeal was dismissed in its entirety.

Orders