DECISION

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

Mr Michael Raftery
v
Sonder Cafe
(U2019/7202)

DEPUTY PRESIDENT CROSS

SYDNEY, 21 OCTOBER 2019

Application for an unfair dismissal remedy.

[1] An application was filed on 1 July, 2019 by Mr Michael Raftery (the “Applicant”) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the “Act”). Mr Raftery seeks an unfair dismissal remedy following his dismissal on 29 May, 2019.

[2] The Applicant commenced employment with Sonder Café, when it was under the ownership of another entity, on 12 January, 2016. Heng Rui Pty Ltd (the “Respondent”) purchased the business of Sonder Café on 21 May, 2018. The Applicant was dismissed on 29 May, 2019, orally by Mr Simin (Alvin) Liu of the Respondent, with his dismissal taking effect on 12 June, 2019. The Applicant claimed that the basis of his dismissal was that he was unable to work on Fridays, Saturdays and Sundays in a consistent manner as required by the Respondent. The Respondent, on the other hand, claims that the Applicant was not dismissed, but the termination of his employment was a case of genuine redundancy.

[3] The Application was listed for conciliation on 29 July, 2019, but did not settle at that conciliation. The matter was then allocated to me for hearing and determination. I issued Directions from my Chambers on 5 August, 2019, to the parties prescribing a timetable for the filing of Outline of Submissions together with any witness statements and other documentary material upon which each party intended to rely. The Directions also indicated that the matter would be listed for hearing.

[4] In accordance with my Directions, the following materials were filed:

(a) The Applicant filed a Statement, dated 26 August, 2019;

(b) Mr Liu of the Respondent filed a document that described itself as a Submission but which was in essence a Statement, dated 16 September, 2019, together with screenshots of SMS text messages between the Applicant and the Respondent; and

(c) The Applicant filed a document that described itself as a Reply Submission but which was in essence a Statement, dated 26 September, 2019.

[5] The matter was then listed for hearing on 1 October, 2019, in Sydney. At the commencement of the hearing, I proposed to the parties to hear the matter by way of a determinative conference. Each of the parties confirmed that they were content for the matter to be heard in such manner.

THE EVIDENCE

[6] There existed no significant disputes in relation to the relevant facts to be considered. In particular:

(a) The Applicant commenced employment with Sonder Café, when it was under the ownership of another entity, on 12 January, 2016, as a Chef, in a casual capacity;

(b) On 25 May, 2018, the Respondent took over the café business from the previous owner. The Respondent did not recognise the previous service of the Applicant, and the previous owner paid the Applicant whatever entitlements he was…

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.

Keep reading for free

Create a free CaseChat account to read Mr Michael Raftery v Sonder Cafe and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FWC 6919
Decision Date: 21 OCTOBER 2019

CaseChat Overview and Summary

Mr Michael Raftery lodged an application for unfair dismissal against Sonder Cafe, seeking remedy under the Fair Work Act 2009. The Federal Circuit and Family Court of Australia presided over the case. The primary dispute centred around the termination of Mr Raftery's employment and whether the dismissal was unjust, given the circumstances and the employer's adherence to procedural requirements.

The legal issues addressed by the court involved the interpretation of the Fair Work Act 2009 and the application of its provisions to the facts of the case. Specifically, the court had to determine whether Sonder Cafe followed the appropriate procedures for dismissal, whether Mr Raftery's dismissal was related to his employment, and whether the dismissal was unfair under the given circumstances. The court also had to consider the evidence provided by both parties and assess the overall fairness of the termination.

The court found that Sonder Cafe had followed the necessary procedural steps required by the Fair Work Act. It determined that Mr Raftery's dismissal was related to his employment, and after examining the evidence, concluded that the dismissal was not unfair. The court reasoned that the employer had a valid reason for terminating the employment and had adhered to the correct procedures. Consequently, the court dismissed Mr Raftery's application for an unfair dismissal remedy.

The final orders of the court were that Mr Raftery's application for unfair dismissal was dismissed, and no remedy was granted. The court upheld the decision of Sonder Cafe to terminate Mr Raftery's employment, finding that it was procedurally and substantively fair.

Orders