DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mark Jurga
v
SMP Solutions PTY LTD or X Site Group
(U2020/12363)

Andrew DeWitt
v
Xsite Services Pty Ltd
(U2020/12554)

COMMISSIONER CAMBRIDGE

SYDNEY, 19 JANUARY 2021

Unfair dismissal applications - jurisdictional objection - s. 382 (a) - whether applicants had completed minimum employment period - whether employer was a small business - s. 23 meaning of small business employer - 15 or more employees - employer not a small business.

[1] This Decision resolves contested jurisdictional objections that were raised in respect of two applications for unfair dismissal remedy that were made pursuant to s. 394 of the Fair Work Act 2009 (the Act).

[2] The first application (U2020/12363) was lodged at Sydney on 15 September 2020. The first application was made by Mark Jurga (Jurga or the first applicant), and the respondent employer in that matter has been identified to be SMP Solutions PTY LTD or X Site Group. Relevantly, SMP SOLUTIONS PTY LTD has been clarified to be a Company withan ABN: 95 139 706 184 (SMP).

[3] The second application (U2020/12554) was lodged at Sydney on 18 September 2020. The second application was made by Andrew DeWitt (DeWitt or the second applicant), and the respondent employer in that matter has been identified to be XSITE SERVICES PTY LTD which has an ABN:16 146 704 618 (Xsite Services). The second applicant has been represented by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU).

[4] Both the first and second applications indicated that the employment of the respective applicants commenced in January 2020, and the date that each of the applicants’ dismissals took effect was 28 August 2020. Consequently, both the first and second applications were made within the 21 day time limit prescribed by subsection 394 (2) of the Act. Further, the applications indicated that the applicants had each been employed for more than 6 months but less than 12 months.

[5] On 29 September 2020, J.S. Pinto Solicitors & Barristers provided an employer's response (the SMP Form F3) to the first application. The SMP Form F3 was provided by Peter Bouzanis who was named as the representative for SMP. On 2 October 2020, PADE Consulting Pty Ltd provided an employer's response (the Xsite Services Form F3) to the second application. The Xsite Services Form F3 was provided by Peter Bouzanis who was named as the representative for Xsite Services.

[6] Both the SMP Form F3 and the Xsite Services Form F3 confirmed that the respective applicants had each been employed for between 6 to 12 months. Further, the employers’ responses that were advanced on behalf of both SMP and Xsite Services (collectively the employers) raised jurisdictional objections on the basis that: 1; the respective applicants’ employment did not meet the minimum employment period (the minimum employment period objection), and 2; the employer is a small business and the dismissal of the respective…

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: [2021] FWC 169
Decision Date: 19 JANUARY 2021

CaseChat Overview and Summary

The applicant, Mark Jurga, sought relief in the Federal Circuit and Family Court of Australia in relation to an unfair dismissal claim against the respondent, SMP Solutions Pty Ltd or X Site Group. The core issue in this case was whether the applicant had completed the minimum period of employment necessary to be eligible for protection against unfair dismissal under the Fair Work Act 2009. Additionally, the court had to determine whether the respondent, SMP Solutions Pty Ltd, qualified as a small business employer, as this would affect the scope of the Fair Work Act's applicability.

The court examined the statutory provisions under Section 382(a) of the Fair Work Act, which stipulates that an applicant must have completed a minimum period of employment to be eligible for unfair dismissal protection. The court also considered the definition of a small business employer under Section 23 of the Act, which includes an entity with 15 or fewer employees. The respondent argued that it did not qualify as a small business employer, a contention that was crucial in determining the appropriate legal framework for the case.

In its ruling, the court found that the applicant had indeed completed the requisite minimum employment period, thus satisfying the eligibility criteria for unfair dismissal protection. However, the court also determined that the respondent, SMP Solutions Pty Ltd, did not qualify as a small business employer because it employed more than 15 people. This finding meant that the standard provisions of the Fair Work Act, rather than those pertaining to small business employers, were applicable to the case.

The court's final orders reflected its determinations on these points, affirming the applicant's eligibility for unfair dismissal protection and applying the standard provisions of the Fair Work Act to the respondent's conduct. The specific details of the relief granted, including any reinstatement or compensation, were not elaborated upon in the summary provided.

Orders