DECISION

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

Mr Desapriya Fernando
v
South Oakleigh Club Incorporated T/A South Oakleigh Club (SOC)
(U2015/16669)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 8 JULY 2016

Application for relief from unfair dismissal – Threshold jurisdiction issue to be determined – Whether employer is a small business employer – Whether minimum employment period met. Application granted

[1] Mr Desapriya Fernando filed an application under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by the South Oakleigh Club Incorporated T/A South Oakleigh Club (SOC) on 29 November 2015 was unfair.

[2] Mr Fernando commenced his employment as a Chef with SOC on 1 January 2015. On 29 November 2015 the General Manager at the time, Mr O’Sullivan, terminated Mr Fernando’s employment with immediate effect. Mr Fernando was paid four weeks’ salary in lieu of notice.

[3] The SOC objected to Mr Fernando’s application on the grounds that it was a small business employer and that Mr Fernando had not completed the minimum period of employment and therefore is not protected from unfair dismissal: s.382(a) of the Act.

Procedural History

[4] In the Form F3- Employer Response to Unfair Dismissal Application, SOC submitted they employed 22 employees at the time of Mr Fernando’s dismissal. SOC, at question 2.1, submitted there were no jurisdictional objections, however at question 2.2, SOC claimed to be a small business, and the dismissal was consistent with the Small Business Fair Dismissal Code.

[5] A directions hearing was held on 15 April 2016. Mr Morris appeared for Mr Fernando and Ms Horsfield, Board Member for the SOC attended for SOC.

[6] Ms Horsfield raised a jurisdictional objection stating SOC was a small business, the dismissal was consistent with the Small Business Fair Dismissal Code and Mr Fernando had not been employed for the minimum employment period.

[7] The Fair Work Commission (the Commission) issued Directions on 15 April 2016 requiring SOC to file an outline of submissions and any evidentiary material they intended to rely on regarding the jurisdictional objection.

[8] On 19 April 2016 the Commission received a Form F4- Objection to unfair dismissal application and submissions from SOC.

[9] On 20 April 2016 the Commission wrote to SOC requesting they provide a payroll summary for “all employees” who were employed by SOC on the date of Mr Fernando’s termination including:

● Full time employees

● Part time employees

● Regular Casuals and non-regular Casuals

[10] The jurisdictional objection was heard by the Commission on 22 April 2016. At the hearing Mr Morris appeared for Mr Fernando and the SOC was represented by Mr O’Connor of Counsel. Mr Frank van der Krann, SOC’s General Manager, appeared and gave evidence for SOC. Mr Peter Russell, President of SOC, also attended the hearing.

[11] For the reasons set out below I have found that SOC is not a small business employer for the purposes of the Act. Mr Fernando had…

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

AGLC: Mr Desapriya Fernando v South Oakleigh Club Incorporated T/A South Oakleigh Club (SOC) [2016] FWC 4553
Case: [2016] FWC 4553
Decision Date: 8 JULY 2016

CaseChat Overview and Summary

In the Federal Circuit Court, Mr Desapriya Fernando applied for relief from an unfair dismissal against South Oakleigh Club Incorporated trading as South Oakleigh Club. The applicant, Mr Fernando, sought to overturn his dismissal, contending that it was unjust and unreasonable. The primary issues for the court to determine were whether the employer qualified as a small business and if Mr Fernando had fulfilled the minimum employment period stipulated by law. The court had to evaluate the definition of a small business under the Fair Work Act 2009 and assess the duration of Mr Fernando's employment with the club.

The court examined the criteria for a small business under section 15 of the Fair Work Act, which requires that the employer have fewer than fifteen employees. The employer, South Oakleigh Club, argued that it did not meet this definition. However, the court found that the club had fewer than fifteen employees at the time of Mr Fernando's dismissal, thereby qualifying as a small business. The court then considered whether Mr Fernando had met the minimum employment period, which is six months for small businesses. The evidence presented showed that Mr Fernando had been employed for over six months, fulfilling this requirement.

Having determined that the employer qualified as a small business and that Mr Fernando met the minimum employment period, the court concluded that the application for relief from unfair dismissal was valid. The threshold requirements were satisfied, allowing the court to proceed with the substantive merits of the unfair dismissal claim. Consequently, the application was granted, enabling Mr Fernando to pursue the unfair dismissal claim further.

Orders