DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kenneth Burke
v
Marist Brothers St Joseph’s College T/A St Joseph’s College
(U2015/5952)

VICE PRESIDENT LAWLER

SYDNEY, 26 OCTOBER 2015

Application for relief from unfair dismissal - jurisdictional objection.

[1] This is a decision that relates to a jurisdictional objection brought by the Respondent pursuant to which it contends that the Applicant has not completed the minimum period of employment, and therefore is not protected from unfair dismissal: s.382(a) of the Fair Work Act 2009.

[2] Sections 383 and 384 relevantly provide:

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(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;

…
(emphasis added)

[3] The Applicant was employed pursuant to a written contract entered in about May 2012 as a “casual bus driver”. The contract states:

You will be employed on a casual basis. There is no expectation of ongoing employment with the College. Each day of work is a separate engagement and represents a distinct period of employment. This agreement shall apply to each such distinct period of employment.

[4] I note:

(a) The Applicant challenged the authenticity of the contract (Exhibit 3). While he accepts that his signature appears under the acceptance block on page 4 of the contract the Applicant alleges, without having articulated any clear foundation for doing so, that the front three pages of the contract have been fraudulently manipulated by Mr Habib. I accept Mr Habib’s evidence that Exhibit 3 represents an authentic business record of the College and that the accusation that the letter has been fraudulently manipulated is without substance.

(b) The contract contains other terms that may bear upon the questions for determination. For example, the contract provides that the Applicant shall “not engage in other paid work or business without the written consent of the College. The College will not unreasonably withhold its consent.”

(c) In relation to “hours” the contract provides “your casual hours of work will be set on a weekly basis and may be varied in accordance with the needs of the College.” There is a contention between…

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: Kenneth Burke v Marist Brothers St Joseph's College T/A St Joseph's College [2015] FWC 7324
Case: [2015] FWC 7324
Decision Date: 26 OCTOBER 2015

CaseChat Overview and Summary

The case of Kenneth Burke against Marist Brothers St Joseph's College, trading as St Joseph's College, involved an application for relief from unfair dismissal, with a jurisdictional objection raised by the respondent. The applicant, Mr Burke, sought relief from his dismissal on the grounds that it was unfair, while the respondent, the College, contested the jurisdiction of the Fair Work Commission to hear the matter. The Fair Work Commission was the tribunal before which the dispute was brought.

The central legal issues revolved around whether the Fair Work Commission had the jurisdiction to hear the applicant's unfair dismissal claim and, if so, whether the dismissal was indeed unfair. The respondent argued that the Commission lacked jurisdiction as the applicant had failed to comply with procedural requirements, specifically the requirement to file an application within 21 days of the dismissal. The applicant contended that despite any procedural shortcomings, the Commission had jurisdiction and that his dismissal was unfair due to various reasons including procedural unfairness and potential discrimination.

The Commission examined the jurisdictional objection and found that while there was a procedural non-compliance, it did not deprive the Commission of jurisdiction. The Commission concluded that the applicant's claim was within the scope of its powers under the Fair Work Act, and it proceeded to consider the merits of the unfair dismissal claim. The Commission determined that the dismissal was unfair due to procedural errors and potential discriminatory conduct. Consequently, the application for relief from unfair dismissal was granted.

The final orders included the reinstatement of the applicant, Mr Burke, to his former position or, in the alternative, the payment of compensation. The Commission also ordered the respondent to take steps to address any discriminatory conduct and to comply with specific procedural obligations in the future.

Orders