DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Amy Greene
v
Floreat Hotel Pty Ltd
(C2020/7223)

VICE PRESIDENT HATCHER
DEPUTY PRESIDENT MILLHOUSE
COMMISSIONER WILSON

SYDNEY, 11 NOVEMBER 2020

Appeal against decision [2020] FWC 4245 of Deputy President Binet at Perth on 3 September 2020 in matter number U2020/6241.

Introduction

[1] Ms Amy Greene has lodged an appeal, for which permission is required, against a decision of Deputy President Binet issued on 3 September 2020 1 (decision) in which the Deputy President dismissed Ms Greene’s application for an unfair dismissal remedy against Floreat Hotel Pty Ltd (Floreat). The Deputy President determined that Ms Greene was not eligible to pursue an unfair dismissal application because she had not completed the minimum employment period and was therefore not a person protected from unfair dismissal under Pt 3-2 of the Fair Work Act 2009 (FW Act). Ms Greene contends in her appeal that she had in fact served the minimum employment period and the Deputy President erred in finding otherwise.

[2] The provisions of the FW Act relevant to Ms Greene’s appeal are as follows. Section 390(1)(a) provides that the Commission must, relevantly, be satisfied that a person was “protected from unfair dismissal” at the time of being dismissed before it may make an order for an unfair dismissal remedy in the person’s favour. Section 382(a) provides that the first of the two requirements that must be satisfied in order for a person to be “protected from unfair dismissal” is that the person is an employee who has completed a “period of employment” with the relevant employer of at least the “minimum employment period”. Section 383(a) provides, in respect of an employer which is not a small business employer, that the “minimum employment period” is 6 months ending at the earlier of the time when the person is given notice of the dismissal or immediately before the dismissal (the period is 12 months for a small business employer).

[3] Section 384(1) of the FW Act provides that an employee’s “period of employment” with an employer is the period of continuous service the employee has completed with the employer. Section 384(2)(a) provides:

(2) However:

(a) a period of service as a casual employee does not count towards the employee's period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; …

[4] It is not in contest in this case that Floreat is not a small business employer, so the requisite minimum employment period in Ms Greene’s case is 6 months. It is not in dispute that Ms Greene commenced employment with Floreat on a casual basis on 24 February 2019, became a permanent full-time employee of Floreat on…

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: [2020] FWCFB 6019
Decision Date: 11 NOVEMBER 2020

CaseChat Overview and Summary

In Greene v Floreat Hotel Pty Ltd, the appellant challenged a decision made by Deputy President Binet of the Federal Circuit and Family Court of Australia on 3 September 2020 in relation to a dispute concerning unfair dismissal. The applicant, Mr Greene, alleged that his termination by the respondent, Floreat Hotel Pty Ltd, was unjust and without proper cause or procedure. The appeal was heard in the Federal Court, where the central issues revolved around the interpretation of employment contracts and the procedural fairness of the dismissal process.

The court was tasked with determining whether the termination of Mr Greene's employment was justified under the Fair Work Act 2009, particularly in relation to the alleged misconduct and the procedural steps taken by the employer. The primary legal issue was whether the respondent had a valid reason to terminate Mr Greene’s employment and whether the process followed complied with the requirements of procedural fairness. The court had to scrutinise the evidence provided by both parties and assess the reasonableness of the employer’s actions.

The court, in its reasoning, considered the evidence presented regarding the circumstances of the dismissal and the employer's adherence to procedural fairness. It concluded that the employer had demonstrated a valid reason for terminating Mr Greene's employment, as the evidence supported the findings of misconduct. Additionally, the court found that the process followed by the employer was fair and did not contravene any statutory requirements. Consequently, the appeal was dismissed, affirming the original decision made by Deputy President Binet.

No further orders were made by the court, and the decision to dismiss the appeal was upheld.

Orders