DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Julie Whiteside
v
Pancare Foundation
(U2020/3849)

COMMISSIONER LEE

MELBOURNE, 15 JUNE 2020

Application for unfair dismissal remedy - jurisdiction - whether Respondent was a small business at the time of the dismissal - whether Applicant had completed the minimum employment period at the time of dismissal - satisfied that Respondent was a small business at time of dismissal - not satisfied the Applicant had completed the minimum employment period at the time of dismissal. Jurisdictional objection upheld. Application dismissed.

[1] On 30 March 2020, Mrs Julie Whiteside (the Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act (the Act) for an unfair dismissal remedy in respect of the termination of her employment by the Pancare Foundation (the Respondent). The Respondent asserts that the Applicant is not a person protected from unfair dismissal as she has not completed the minimum employment period at the time of the dismissal. The Respondent asserts that the Applicant was only employed as a full-time employee by the Respondent from 4 August 2019 to 17 March 2020. The Applicant asserts she was employed from 1 May 2019 to 17 March 2020. The Respondent also asserts it was a small business employer as defined in the Act at the time of dismissal with 11 employees.

Background

[2] Prior to the hearing, I provided a background document to the parties (the Background document) which drew upon the evidence filed in the matter. The purpose of the Background document was to facilitate the efficient conduct of the proceedings. The Background document and its contents were canvassed with the parties during the hearing. Based on the document circulated as amended to reflect the statements of the parties during the hearing, the Background to the matter can be summarised as follows: 1

1. The Applicant commenced working for the Respondent, either as a contractor or as an employee, on 29 April 2019.

2. The Applicant submits that she was an employee from 29 April 2019 until her dismissal on 17 March 2020. (a period of 10 months and 18 days)

3. The Respondent submits that the Applicant was in a contractor relationship with the Respondent from 29 April 2019 until 4 August 2019. It is common ground that the Applicant was an employee of the Respondent from 5 August 2019 until her dismissal on 17 March 2020 (a period of 7 months and 12 days)

4. On either case, it is apparent that the Applicant has completed a period of continuous service with the Respondent or more than 6 months, and less than 12 months.

5. The Respondent disputes that the Applicant has completed a period of employment that is at least the minimum employment period prior to when the termination of employment took effect on 17 March 2019 (the relevant time).

6. Sections 383 and 384 of the Act is in the following terms:

“383 Meaning 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.

Keep reading for free

Create a free CaseChat account to read Julie Whiteside v Pancare Foundation 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 2833
Decision Date: 15 JUNE 2020

CaseChat Overview and Summary

Julie Whiteside filed an application for unfair dismissal remedy against Pancare Foundation. The matter was heard in the Fair Work Commission. The central dispute was whether the Respondent was a small business at the time of the dismissal and whether the Applicant had completed the minimum employment period at the time of dismissal. The Applicant sought relief under the Fair Work Act 2009, claiming that her dismissal was unfair. The Respondent argued that it was a small business and that the Applicant had not completed the minimum employment period, thereby affecting the jurisdiction of the Commission.

The court was tasked with determining two primary issues: first, whether the Respondent qualified as a small business for the purposes of the Fair Work Act, and second, whether the Applicant had met the minimum employment period requirement to be eligible for an unfair dismissal remedy. The court examined evidence regarding the Respondent's size and financial status and assessed whether the Applicant had been continuously employed for the requisite period. The Applicant argued that the Respondent was not a small business and that she had completed the minimum employment period. The Respondent countered that it was a small business and that the Applicant had not fulfilled the employment period requirement.

After reviewing the evidence, the court found that the Respondent was indeed a small business at the time of the dismissal. However, the court was not satisfied that the Applicant had completed the minimum employment period at the time of her dismissal. As a result, the court upheld the jurisdictional objection and dismissed the Applicant's application for unfair dismissal remedy. The court concluded that, due to the Respondent's status as a small business and the Applicant's failure to meet the employment period requirement, the Commission lacked the jurisdiction to hear the application.

Orders