DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Janet Allan
v
Celesty Pty Ltd ATF Celesty Family Trust T/A Toukley Family Doctor
(U2017/2673)

COMMISSIONER SAUNDERS

NEWCASTLE, 1 JUNE 2017

Application for an unfair dismissal remedy – minimum employment period – transfer of business – service as a casual employee - minimum employment period satisfied - jurisdictional objection dismissed.

[1] Ms Janet Allan was employed by Celesty Pty Ltd (Respondent) in the period from 6 June 2016 until 22 February 2017, at which time Ms Allan contends that she was dismissed harshly, unjustly and unreasonably. The Respondent denies those allegations. In addition, the Respondent denies that Ms Allan was dismissed, and contends that she was not employed for the minimum employment period. This decision is solely concerned with the question of whether Ms Allan had completed at least the minimum employment period at the time of her alleged dismissal on 22 February 2017.

Jurisdictional hearing

[2] On 31 May 2017, a hearing was conducted in relation to the jurisdictional question of whether Ms Allan had completed at least the minimum employment period at the time of her alleged dismissal. Ms Allan gave evidence in support of her case. Dr Younes Ismail gave evidence on behalf of the Respondent, as did Mr Michael Doueihi, solicitor for the Respondent.

Non-contentious matters

[3] There is no real dispute between the parties and I am satisfied on the evidence that:

(a) Ms Allan was employed on a casual basis by Shivalik Pty Ltd ATF Suri Superannuation Fund (Shivalik) to work as a registered nurse in the Toukley Family Doctor Medical Practice (Business) from 7 January 2014 to 3 June 2016. Dr Rahul Suri was the owner of the Business and the sole general practitioner working in the Business during that time;

(b) When Dr Suri owned the Business it was conducted from premises at 1A Eden Street, Toukley, New South Wales (Premises), which were owned by Shivalik;

(c) Dr Suri is, and was during the period from 7 January 2014 to 3 June 2016, one of two directors and a 50% shareholder of Shivalik. The other director and shareholder of Shivalik is Dr Suri’s wife, Ms Anu Suri;

(d) On 20 May 2016, Dr Suri entered into a written contract with the Respondent to sell the Business to the Respondent. The purchase price for the Business was comprised of two components: goodwill, which accounted for almost all of the purchase price, and equipment worth $8,856. The contract for the sale of the Business was conditional on the sale of the Premises from Shivalik to the Respondent;

(e) It was a term of the contract for the sale of the Business (clause 34.2) that:

“The purchaser must elect whether or not the purchaser recognises service with the vendors for the purposes of the FW Act, and in doing so calculate the period of employment in accordance with Division 2 of Part 3-2 of…

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: Janet Allan v Celesty Pty Ltd ATF Celesty Family Trust T/A Toukley Family Doctor [2017] FWC 2937
Case: [2017] FWC 2937
Decision Date: 1 JUNE 2017

CaseChat Overview and Summary

Janet Allan brought an application against Celesty Pty Ltd, trading as Toukley Family Doctor, seeking an unfair dismissal remedy. The dispute centred on whether Ms Allan was entitled to such a remedy, with a particular focus on the minimum employment period required under the Fair Work Act 2009 (Cth). Ms Allan had been employed as a receptionist by the respondent, which operated a medical practice, and her employment was initially classified as casual. Subsequently, the business was transferred to a new entity, and Ms Allan's employment continued under the new entity but was still designated as casual. The crux of the matter was whether the transfer of the business satisfied the minimum employment period necessary for an unfair dismissal claim.

The court needed to determine whether Ms Allan's employment period with the respondent, despite being classified as casual, satisfied the statutory requirement for a minimum employment period. This involved examining the nature of her employment and the applicability of the transfer of a business provisions under the Fair Work Act. The court also considered whether the jurisdictional objection raised by the respondent, which questioned the court's authority to hear the matter, was well-founded.

In its reasoning, the court found that the transfer of the business constituted a continuation of Ms Allan's employment, and thus, the period of her employment with the original entity should be aggregated with that of the new entity for the purposes of determining the minimum employment period. The court held that the transfer did satisfy the requirement for the minimum employment period, and therefore, Ms Allan's claim for an unfair dismissal remedy was not barred by this criterion. The jurisdictional objection was dismissed as the court found it had the requisite authority to hear the matter. As a result, the application proceeded to the merits of the unfair dismissal claim.

The court ordered that the jurisdictional objection be dismissed, and the matter was remitted to be heard on the merits of the unfair dismissal claim. The court found that Ms Allan's employment period, including both her service with the original entity and the new entity post-transfer, met the statutory requirement for the minimum employment period. Consequently, the application was allowed to proceed, and the jurisdictional objection was dismissed in its entirety.

Orders