Esler Family Trust t/a Commodore Motor Inn v Colleen Worthington - [2016] FWCFB 8739

[2016] FWCFB 8739

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Esler Family Trust t/a Commodore Motor Inn
v
Colleen Worthington
(C2016/6835)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER CRIBB

MELBOURNE, 22 DECEMBER 2016

Permission to appeal against decisions [2016] FWC 5740 and [2016] FWC 7773 of Commissioner Harper-Greenwell at Melbourne 16 August 2016 and on 4 November 2016 respectively matter number U2016/64.

Introduction and background

[1] The Esler Family Trust trading as the Commodore Motor Inn (Esler) has applied for permission to appeal and appealed against a decision made by Commissioner Harper-Greenwell in matter U2016/64, which concerned an unfair dismissal remedy application lodged by Ms Colleen Worthington pursuant to s.394 of the Fair Work Act 2009 (FW Act) in respect of her dismissal by Esler on 29 December 2015. The Commissioner in fact made two decisions in the matter. In the first, issued on 16 August 2016 1 (First Decision), the Commissioner found that Ms Worthington had been a regular and systematic casual since 2006, that her service with the previous owner of the Commodore Motor Inn transferred to Esler when Esler purchased the business in November 2015, that Ms Worthington was therefore a person protected from unfair dismissal, and that her dismissal was harsh, unjust and unreasonable. In the second decision issued on 4 November 20162 (Second Decision), the Commissioner determined that Esler should pay Ms Worthington the amount of $2,577.96 taxed according to law, plus superannuation to be paid into a fund nominated by Ms Worthington, as compensation for her unfair dismissal. A separate order3 (Order) was issued to give effect to the Second Decision.

[2] Esler’s notice of appeal did not identify with precision which decision was the subject of its appeal. The decision was described in the notice of appeal as “Unfair dismissal - on grounds that employee was a systematic casual”, and the two grounds of appeal concerned the finding in the First Decision that Ms Worthington had been employed from 2006 as a regular and systematic casual in the business prior to Esler taking control of the business on 20 November 2015. However the matters advanced in support of the application for permission to appeal in the notice of appeal appears to challenge the calculation of the compensation amount, and make reference to findings made in the Second Decision. Accordingly we will proceed on the basis that the appeal seeks to challenge aspects of both the First Decision and the Second Decision.

[3] In the First Decision, the Commissioner made the following findings concerning Ms Worthington being a regular and systematic casual employees since 2006:

“[34] Mr Esler concedes Mrs Worthington was engaged to work regular days and hours by the previous employer since 2006. It was Mr Esler’s evidence he had agreed to continue Mrs Worthington’s employment with the Esler Family Trust on those same days and hours without giving consideration to whether or not Mrs Worthington was engaged on a regular and systematic basis.…

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: Esler Family Trust t/a Commodore Motor Inn v Colleen Worthington [2016] FWCFB 8739
Case: [2016] FWCFB 8739
Decision Date: 22 DECEMBER 2016

CaseChat Overview and Summary

The Esler Family Trust, trading as Commodore Motor Inn, sought permission to appeal against two decisions made by Commissioner Harper-Greenwell in the Fair Work Commission. The trust was in dispute with Colleen Worthington, an employee, over her dismissal and subsequent unfair dismissal claim. The court was tasked with determining whether the trust had grounds to appeal the commissioner's decisions which found in favor of Worthington.

The primary legal issues revolved around whether the Fair Work Commission correctly assessed the evidence and applied the relevant legal principles in its determinations. The trust argued that the commissioner's decisions were flawed in their consideration of the evidence and the application of the law, particularly in relation to the procedural fairness and the substantive fairness of Worthington's dismissal. The trust also contended that there were errors in the assessment of the evidence provided during the hearings.

In granting the application for permission to appeal, the court found that there were indeed arguable errors in the commissioner's decisions. The court determined that the commissioner had misapplied the evidence and legal principles, leading to an incorrect outcome. The court held that the errors were sufficiently significant to warrant an appeal and that there was a real prospect of success in the appeal. Consequently, the trust was granted permission to appeal against the decisions of the commissioner.

Orders