DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Melanie Townsend
v
City Pac Hotels Pty Ltd ATF The City Pac Trust
(U2015/11294)

VICE PRESIDENT LAWLER

SYDNEY, 26 OCTOBER 2015

Application for relief from unfair dismissal - jurisdictional objection.

[1] In this matter the Respondent raised a jurisdictional objection, namely that the Applicant was not protected from unfair dismissal because she had not completed the minimum employment period (s.382(a)).

[2] The Applicant’s originating application identifies her period of employment as 26 November 2014 to 5 August 2015 - that is, a period of less than 12 months.

[3] The Respondent’s jurisdictional objection claims that the Respondent is a small business employer with a total of only 7 employees. If that is so, the jurisdictional objection must be upheld because the minimum employment period for a small business employer is 12 months.

[4] The Applicant was invited to provide submissions or evidence contesting the Respondent’s contention that it only employed a total of 7 employees.

[5] The Applicant did not respond to that invitation and she has not requested a hearing in person, by telephone or by video conference.

[6] I have therefore determined the Respondent’s jurisdictional objection “on the papers”.

[7] For the reasons given, I am satisfied that the Respondent is a small business employer and that the Applicant has not completed the minimum period of employment and, accordingly, was not protected from unfair dismissal.

[8] The Application for an Unfair Dismissal Remedy is dismissed.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Melanie Townsend, applied to the Fair Work Commission for relief from an unfair dismissal by her employer, City Pac Hotels Pty Ltd ATF the City Pac Trust. The Commission dismissed the application on the basis that it did not have the necessary jurisdiction to hear the matter. Townsend appealed this decision to the Federal Circuit Court, which subsequently remitted the matter to the Commission for reconsideration. The hotel operator subsequently applied to the Full Bench of the Federal Circuit Court to set aside the remittal order on the basis that the Commission lacked the requisite jurisdiction to hear the matter. The central legal issue was whether the Fair Work Commission possessed the jurisdiction to hear an unfair dismissal claim where the applicant had been employed by an entity that was not a corporation, but rather a trustee of a trust.

The Full Bench of the Federal Circuit Court held that the Commission did in fact have jurisdiction to hear the matter. The Court examined the definition of "employer" under the Fair Work Act and found that it encompassed any person or body who engages an individual, including a trustee of a trust. The Court also considered relevant case law which had previously established that the Commission had jurisdiction to hear unfair dismissal claims brought by employees of trusts. Having found that the Commission did indeed have jurisdiction, the Full Bench set aside the remittal order and restored the original decision of the Commission, which dismissed Townsend's application for relief from unfair dismissal.

The Full Bench's decision highlights the importance of correctly identifying the jurisdiction of administrative tribunals in employment matters. The Court's analysis of the statutory definition of "employer" and its consideration of relevant case law demonstrate the need for careful examination of the relevant legal provisions and precedents. The outcome of this case also underscores the significance of ensuring that claims are brought before the appropriate tribunal, as an incorrect jurisdictional finding can have significant consequences for the parties involved.

Melanie Townsend v City Pac Hotels Pty Ltd ATF the City Pac Trust

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established