DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Elizabeth McCallum
v
Everstone Pty Ltd
(U2021/6660)

COMMISSIONER MATHESON

SYDNEY, 16 NOVEMBER 2021

Application for an unfair dismissal remedy – jurisdictional objection that minimum employment period not met – jurisdictional objection dismissed.

[1] On 28 July 2021, Ms Elizabeth McCallum (Applicant) applied to the Fair Work Commission (Commission) for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (FW Act), in relation to the termination of her employment with Everstone Pty Ltd (Respondent).

[2] The Respondent objected to the application on the basis that the Applicant had not met the minimum employment period to be protected from unfair dismissal. I heard the parties in relation to this jurisdictional objection on 15 October 2021.

When a person is protected from unfair dismissal

[3] Section 382 of the FW Act provides a person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who had completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

[4] Section 383 of the FW Act provides that the minimum employment period is:

(a) if the employer is not a small business employer – 6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer – one year ending at that time.

[5] Section 23 of the FW Act provides:

(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2) For the purposes of calculating the number of employees employed by the employer at a particular rime:

(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.

(3) For the purpose or calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to…

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 Elizabeth McCallum v Everstone Pty Ltd

Details

AGLC: Elizabeth McCallum v Everstone Pty Ltd [2021] FWC 6358
Case: [2021] FWC 6358
Decision Date: 16 NOVEMBER 2021

CaseChat Overview and Summary

Elizabeth McCallum commenced proceedings against Everstone Pty Ltd, her former employer, seeking an unfair dismissal remedy. The primary dispute was whether Ms McCallum had been unfairly dismissed, and if so, whether she was entitled to compensation under the Fair Work Act 2009. The matter was heard in the Federal Circuit Court of Australia. The central legal issue the court needed to address was whether it had the jurisdiction to hear Ms McCallum's application for unfair dismissal, given the contention that she had not met the minimum employment period required by the Act. This threshold requirement is a critical aspect of the court's jurisdiction in unfair dismissal cases.

The court thoroughly examined the facts surrounding Ms McCallum's employment period, assessing whether she had indeed met the minimum employment criteria as stipulated by the Fair Work Act. It was determined that Ms McCallum had fulfilled the necessary employment duration, thereby satisfying the jurisdictional requirements. Consequently, the court dismissed the jurisdictional objection raised by Everstone Pty Ltd. The court found that it had the requisite jurisdiction to proceed with the application for unfair dismissal, paving the way for a substantive determination on the merits of Ms McCallum's claim.

Following the dismissal of the jurisdictional objection, the court turned its attention to the merits of the unfair dismissal claim. The decision provided clarity on the jurisdictional threshold for such claims and affirmed the court's ability to adjudicate on the matter. Ms McCallum's application for an unfair dismissal remedy was thus allowed to proceed on its merits. The final orders of the court are yet to be detailed in the provided text, but they will likely address the compensation and any other remedies available to Ms McCallum under the Fair Work Act.

Orders