DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Geordine De Lisen
v
Bond Store Wallaroo
(U2020/14225)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 17 DECEMBER 2020

Application for an unfair dismissal remedy – minimum employment period – whether a small business – status of working directors – whether school casuals regular and systematic – minimum employment period not served – application dismissed

[1] On 29 October 2020 Geordine De Lisen (Ms De Lisen or the Applicant) applied to the Commission under section 394 of the Fair Work Act 2009 (FW Act) for an unfair dismissal remedy concerning a dismissal on 11 October 2020 by her then employer, Bond Store Wallaroo 1 (Bond Store, the Employer or the Respondent).

[2] The application is opposed by Bond Store which raises a jurisdictional objection that Ms De Lisen did not serve the minimum employment period to be eligible to make a claim.

[3] In this matter, the minimum employment issue requires the Commission to determine whether Bond Store was, at the relevant time, a small business as defined by the FW Act.

[4] Ms De Lisen’s application was not conciliated as the Employer sought determination of Ms De Lisen’s eligibility to make the claim before further proceedings (if any).

[5] Bond Store was self-represented, through its owners Derek and Nicole Matthewman. Ms De Lisen was represented by Ms McCarthy of the United Workers’ Union (UWU).

[6] I issued directions on 18 November 2020.

[7] On 25 November 2020 Ms De Lisen sought a production order for documents concerning the employment of a casual employee (Ms van Paridon) and documents related to payments (if any) by the employing entity’s Unit Trust to the owners. I dealt with the production order application on 30 November 2020. Orders were not required. By consent, the Employer agreed to provide a relevant email concerning the employment of Ms van Paridon. The order concerning distribution (if any) by the Unit Trust was not pressed given the advice of the owners that no funds had been paid.

[8] Materials were filed by Ms De Lisen and by the Employer (including reply materials by the Employer for which leave was given).

[9] By consent, the minimum employment issue was determined on the papers.

Facts

[10] In light of the matter being determined without need for cross examination, I bring into evidence the unsworn statement of Ms De Lisen and also the statement and reply statement of Bond Store Wallaroo as if each were sworn evidence in these proceedings.

[11] The facts are not largely in dispute though both parties disagree on the application of the facts to the law.

[12] Bond Store is a microbrewery, distillery and restaurant located in the town of Wallaroo on the Yorke Peninsula in regional South Australia.

[13] Bond Store is owned by Derek and Nicole Matthewman who established the business in December 2019. It closed between March and May 2020 due to COVID-19 restrictions, but has traded…

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.

Keep reading for free

Create a free CaseChat account to read Geordine De LisenvBond Store Wallaroo and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FWC 6732
Decision Date: 17 DECEMBER 2020

CaseChat Overview and Summary

The case of Geordine De LisenvBond Store Wallaroo involved an application for an unfair dismissal remedy brought by an employee against their employer. The employer, Bond Store Wallaroo, was a small business engaged in the retail trade, and the applicant had been employed as a casual worker. The dispute centred on whether the applicant had completed the minimum employment period required for unfair dismissal claims and whether the employer constituted a small business for the purposes of the applicable legislation. Additionally, the status of working directors in the context of determining the small business criteria was examined, as well as whether the applicant's employment as a school casual should be considered regular and systematic.

The court was required to determine several key legal issues, including whether the minimum employment period had been met, the definition and applicability of a small business in this context, the role of working directors in assessing the small business status, and whether the applicant's employment as a school casual was regular and systematic. The court had to interpret the relevant statutory provisions and consider relevant case law to resolve these issues.

In its decision, the court found that the applicant had not completed the requisite minimum employment period, which is a prerequisite for bringing an unfair dismissal claim. The court also determined that Bond Store Wallaroo was not a small business, as the working directors' status did not meet the legislative criteria. Furthermore, the court held that the applicant's employment as a school casual was not regular and systematic. Consequently, the application for an unfair dismissal remedy was dismissed. The court's reasoning was based on a detailed analysis of the statutory provisions and the facts of the case, leading to the conclusion that the applicant did not meet the eligibility requirements for the relief sought.

Orders