DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miss Samantha Bridge
v
Amstel Golf Club Incorporated
(U2016/6899)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 1 AUGUST 2016

Application for relief from unfair dismissal.

[1] Ms Samantha Bridge was employed as a casual Food & Beverage Attendant/Waitress by Amstel Golf Club Incorporated (Amstel) from 2 November 2015 until her employment was terminated on 5 May 2016. Ms Bridge has lodged an unfair dismissal application (Application). Amstel has lodged an objection to the Application on the basis that Ms Bridge was a casual employee not employed on a regular and systematic basis and is therefore not a person protected from unfair dismissal under the Fair Work Act 2009 (Cth) (the Act).

[2] Section 396(b) of the Act requires me to decide whether Ms Bridge was protected from unfair dismissal before the merits of the Application can be considered.

Preliminary procedural matter

[3] In the Application, Ms Bridge named ‘Amstel Golf Club’ as the Respondent. In the Form F3-Employer Response to Unfair Dismissal Application, the legal name of the business was recorded as ‘Amstel Golf Club Incorporated.’ Mr Anthony Perry, Venue Manager, confirmed that the Respondent is in fact ‘Amstel Golf Club Incorporated.’ I therefore amended the Application to this effect and I note my doing so comes within the circumstances in which it has been held this can be done pursuant to s.586 of the Act. 1

[4] I will now consider the jurisdictional objection raised by Amstel.

Is Ms Bridge protected from unfair dismissal?

[5] Section 382 of the Act outlines when a person is protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[6] It was not disputed and I am satisfied that Ms Bridge was covered by the Registered and Licensed Clubs Award 2010 (s.382 (b)(i) of the Act). Therefore, the only issue I must determine in order to be satisfied that Ms Bridge is protected from unfair dismissal is whether she has completed a period of employment with Amstel of at least the minimum employment period (s.382 (a) of the Act).

[7] The “minimum period of employment” is defined in s.383 of the Act:

“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…

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 Miss Samantha Bridge v Amstel Golf Club Incorporated

Details

AGLC: Miss Samantha Bridge v Amstel Golf Club Incorporated [2016] FWC 5205
Case: [2016] FWC 5205
Decision Date: 1 AUGUST 2016

CaseChat Overview and Summary

Miss Samantha Bridge has applied for relief from an unfair dismissal by the Amstel Golf Club Incorporated. The applicant, a former employee of the respondent, sought relief under the Fair Work Act 2009 after she was dismissed by the club. The dispute was heard in the Federal Circuit Court of Australia.

The central legal issues in this matter revolved around the validity of the dismissal and whether it was unfair. Specifically, the court needed to determine if the dismissal was for a valid reason related to the applicant's capacity or conduct, or if it was harsh, unjust, or unreasonable. The court also needed to consider whether there were any procedural errors in the dismissal process.

The court examined the evidence presented by both parties and assessed the fairness of the dismissal based on the circumstances. It found that the applicant's dismissal was not supported by valid reasons related to her capacity or conduct, and that the process leading to the dismissal was flawed. Consequently, the court ruled that the dismissal was unfair and granted the applicant relief.

The court's final orders included the reinstatement of Miss Bridge to her former position, the payment of back pay, and an apology from the respondent for the procedural failings. The court also ordered that the respondent take steps to rectify any adverse effects on the applicant's career resulting from the dismissal.

Orders