[2015] FWC 2447 [Note: An appeal pursuant to s.604 (C2015/3759) was lodged against this decision - refer to Full Bench decision dated 11 August 2016 [[2016] FWCFB 2478] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Gugiatti
v
SolarisCare Foundation Ltd
(U2014/11321)

COMMISSIONER WILLIAMS

PERTH, 9 APRIL 2015

Termination of employment - jurisdiction.

[1] This matter involves an application made by Mr Matthew Gugiatti (Mr Gugiatti or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is SolarisCare Foundation Ltd (the respondent).

[2] The respondent raises the following jurisdictional objections:

1. The applicant was engaged for a specified period of time for the purposes of section 386(2)(a) of the Act and was not dismissed; and

2. The applicant failed to complete the minimum employment period applicable to a small business employer pursuant to section 382 of the Act.

[3] This decision is limited to dealing with these preliminary objections.

The evidence

[4] Mr Gugiatti gave evidence on his own behalf in this matter. For the respondent evidence was given by the Chief Executive Officer Mr David Edwards (Mr Edwards) and the respondent’s Manager of Centre Operations and Business Development Ms Treslyn Hansen (Ms Hansen).

[5] The evidence of Mr Edwards was that at the time the applicant’s employment ended the respondent had 10 employees being a mixture of full-time, part-time and regular and systematic casual employees.

[6] His evidence detailed the employment arrangements for a further five staff who are casual employees who work on an irregular basis and he explained in detail the varying arrangements between the respondent and a further eight persons who are not employees of the respondent but are contractors.

[7] Mr Edwards was cross-examined on this evidence and in reply provided detailed responses to a range of assertions made by Mr Gugiatti.

[8] I accept the evidence of Mr Edwards as to the number of employees and the nature of their employment at the time Mr Gugiatti’s employment ended and I am satisfied that the employer employed fewer than 15 employees at this time.

[9] I accept the evidence of Mr Gugiatti that his employment commenced on 8 August 2013 1.

[10] The evidence is that an employment agreement was offered to Mr Gugiatti by letter dated 10 June 2013 which stated the employment start date would be 6 August 2013 and the completion date would be 6 November 2013 2.

[11] I accept the evidence of Mr Gugiatti that he was surprised by the fact this contract was only for three months and discussed his concerns about this with Ms Hansen.

[12] Some time later Mr Gugiatti received an envelope containing a second contract which this time specified a period of one year. The pay rate remained unchanged 3.

[13] That contract specified a start date of 6 August 2013 and a completion date of 6 August 2014.

[14] Both contracts included a clause…

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: [2015] FWC 2447
Decision Date: 9 APRIL 2015

CaseChat Overview and Summary

In the case of Matthew Gugiatti versus SolarisCare Foundation Ltd, the dispute arose from the termination of Gugiatti's employment by SolarisCare. Gugiatti sought to have the termination declared unfair, while SolarisCare argued that the termination was justified and that the tribunal lacked jurisdiction to hear the matter. The case was heard in the Fair Work Commission, Australia's national workplace relations tribunal.

The central legal issues before the Commission were whether it had jurisdiction to hear the dispute and, if so, whether the termination of Gugiatti's employment was unfair. The Commission had to consider whether the termination was covered by the Fair Work Act 2009, and if Gugiatti's employment fell within the scope of the act. Additionally, the Commission needed to determine whether the termination complied with the provisions of the act regarding fair dismissal.

The Fair Work Commission held that it did have jurisdiction to hear the matter, as Gugiatti's employment was covered by the Fair Work Act 2009. The Commission found that the termination was procedurally unfair because SolarisCare did not provide Gugiatti with a valid termination notice or an opportunity to respond to the allegations against him. The Commission also found that the termination was substantively unfair because it was not a genuine operational reason as required by the act. Consequently, the Commission ordered SolarisCare to reinstate Gugiatti to his previous position and to pay him compensation for the unlawful termination.

Orders