Kyle Pocock v Bayside Gate Frames Pty Ltd - [2023] FWC 2191

[2023] FWC 2191

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kyle Pocock
v

Bayside Gate Frames Pty Ltd

(U2023/4721)

DEPUTY PRESIDENT LAKE

BRISBANE, 26 SEPTEMBER 2023

Application for an unfair dismissal remedy – jurisdictional objection – minimum employment period – casual employee found to be regular and systematic – jurisdictional objection dismissed – matter programmed for merits

Mr Kyle Pocock (the Applicant) lodged an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (the Act) to the Fair Work Commission (the Commission) on 29 May 2023. The Applicant claimed that he was unfairly dismissed from his employment by Bayside Gate Frames Pty Ltd (the Respondent).

The Respondent raised a jurisdictional objection that the Applicant’s employment did not meet the minimum employment period in accordance with s.383 of the Act. The Respondent stated that the Applicant was employed as a casual employee, and that he was not employed on a regular and systematic basis and did not have a reasonable expectation of continuing employment. The Respondent therefore stated that the Applicant’s service as a casual employee does not count towards his minimum period of employment.

In accordance with s.382 of the Act, for the Applicant to be eligible to make a claim under s.394 of the Act, the Applicant will need to establish that he met the minimum employment period outlined in s.383 of the Act.

The matter was heard by video using Microsoft Teams on 22 August 2023. The Applicant did not appear at the hearing. Pursuant to s.596(2)(a) permission was granted for the Respondent to be represented by Ms Grace Cue of Law Squared. Ms Jane Martin, Chief Financial Officer, gave evidence on behalf of the Respondent.

Background

The Applicant commenced employment with the Respondent on 25 July 2022 as a concrete labourer. The Applicant was engaged on a casual basis.

On 9 February 2023, the Applicant suffered a workplace injury to his left thumb. The Applicant underwent surgery in relation to the injury on 15 February 2023, and was absent from work on this date until 30 March 2023. The Applicant received workers’ compensation payments throughout this period. On 31 March 2023, the Applicant returned to work.

The Applicant worked a variable number of weekly hours from the commencement of his employment until his dismissal.

The Applicant was dismissed at the conclusion of his shift on 19 May 2023. The Applicant stated that he was dismissed due to the Respondent’s financial constraints.

Consideration

Section 382(a) of the Act requires a person to have completed a period of employment with their employer of at least the minimum employment period to be protected from unfair dismissal. It was not in contention that the Respondent was not a small business employer, meaning the relevant minimum employment period is six months.

The Applicant’s period of employment is to be calculated in accordance with s.384 of the Act. Section 384 relevantly provides:

384 Period of employment

(1)…

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.

Continue reading Kyle Pocock v Bayside Gate Frames Pty Ltd

Details

AGLC: Kyle Pocock v Bayside Gate Frames Pty Ltd [2023] FWC 2191
Case: [2023] FWC 2191
Decision Date: 26 SEPTEMBER 2023

CaseChat Overview and Summary

Kyle Pocock has applied for a remedy for unfair dismissal against Bayside Gate Frames Pty Ltd under section 394 of the Fair Work Act 2009 (Cth). Bayside Gate Frames Pty Ltd raised a jurisdictional objection that the applicant’s employment did not meet the minimum employment period in accordance with section 383 of the Fair Work Act 2009 (Cth). The objection was based on the argument that the applicant’s employment did not meet the minimum employment period, as he was employed as a casual employee and was not employed on a regular and systematic basis. The court had to determine whether the applicant’s employment as a casual employee was on a regular and systematic basis, and whether the applicant had a reasonable expectation of continuing employment. The court found that the applicant’s employment as a casual employee was on a regular and systematic basis and the applicant had a reasonable expectation of continuing employment on a regular and systematic basis. Therefore, the applicant’s period of service as a casual employee counts towards his period of employment, pursuant to section 384 of the Fair Work Act 2009 (Cth). The applicant has therefore met the minimum employment period of 6 months provided by section 383 of the Fair Work Act 2009 (Cth). The court dismissed the jurisdictional objection and ordered that the matter be further programmed for consideration of the merits of the applicant’s application.

Orders