DECISION

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

Mr Ross Richards
v
Barro Group Pty Ltd
(U2020/1300)

COMMISSIONER MCKINNON

MELBOURNE, 22 MAY 2020

Application for unfair dismissal remedy – minimum employment period – whether transfer of business.

[1] Ross Richards worked at the Sunshine landfill in Kealba, Victoria on and off from 12 April 2019 until 17 January 2020. After he lost his job, he applied to the Commission for an unfair dismissal remedy from Barro Group Pty Ltd. Barro Group says Mr Richards cannot bring an unfair dismissal claim because it employed him for less than six months. This decision is about whether Mr Richards is protected from unfair dismissal. The answer depends on how long he was employed by Barro Group.

[2] For his first two months at Sunshine landfill, Mr Richards was employed by a labour hire agency, Eire Workforce Solutions Pty Ltd. He ceased work on 15 June 2019 following a workplace injury and took a holiday to Canada to visit his children. Upon his return to Australia, he worked for another labour hire agency, TecSide Group Pty Ltd, at a different Barro Group site for a fortnight from 28 June 2019 to 12 July 2019.

[3] From 28 August 2019, Mr Richards resumed work at the Sunshine landfill, this time as a permanent employee of Barro Group. He worked mostly in the landfill ‘tipface’ crew. His employment was terminated on 17 January 2020.

[4] Mr Richards says that all of his time worked at the Sunshine landfill should count as service with Barro Group because there was a transfer of business from Eire Workforce to Barro Group in connection with his employment by Barro Group on a permanent basis from 28 August 2019.

[5] I am unable to agree that there was a transfer of business from Eire Workforce to Barro Group in relation to Mr Richards. These are my reasons.

Was there a transfer of business?

[6] Section 22(5) of the Act generally provides for continuity of service for transferring employees in relation to a transfer of business. A transfer of employment from one employer to another occurs if the employee is employed by the new employer within 3 months of ceasing employment with the old employer to perform the same, or substantially the same, work and there is a connection between the two employers. 1

[7] Four categories of ‘connection’ between employers may give rise to a transfer of business. 2 Two of those are relevant for present purposes: outsourcing of work and ceasing to outsource work (also known as ‘insourcing’).

[8] Mr Richards says there was an insourcing of work from Eire Workforce to Barro Group in relation to his employment on and from 28 August 2019. For there to have been an insourcing of work, that work must first have been outsourced to Eire Workforce and the outsourcing arrangement must have come to an end.

[9] There is no dispute that…

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: [2020] FWC 2687
Decision Date: 22 MAY 2020

CaseChat Overview and Summary

The case of Mr Ross Richards versus Barro Group Pty Ltd was before the Fair Work Commission, where the applicant, Mr Richards, sought a remedy for an alleged unfair dismissal. Mr Richards claimed that his dismissal by Barro Group Pty Ltd was unjust and that he was entitled to compensation. Barro Group Pty Ltd, the respondent, maintained that the dismissal was carried out in accordance with the applicable employment laws. The central issue in this case was whether Mr Richards qualified for an unfair dismissal remedy, specifically considering the minimum employment period requirement and whether a transfer of business had occurred that would exempt the respondent from the unfair dismissal provisions.

The Fair Work Commission had to determine if Mr Richards had satisfied the minimum employment period requirement to be eligible for an unfair dismissal remedy. Additionally, the court needed to assess whether the business transfer exception applied, which would exempt the respondent from the unfair dismissal provisions. The Commission examined the evidence presented by both parties, including the terms of Mr Richards' employment, the nature of the dismissal, and the circumstances surrounding any business transfer.

After careful consideration of the evidence and arguments presented, the Fair Work Commission concluded that Mr Richards did not meet the minimum employment period requirement for an unfair dismissal remedy. The Commission found that the transfer of business exception did not apply in this case. Consequently, the application for an unfair dismissal remedy was dismissed. The Commission's decision was based on the specific facts and legal interpretation relevant to the case, affirming the respondent's position that the dismissal was conducted in compliance with the applicable laws.

The Fair Work Commission's final orders were that Mr Richards' application for an unfair dismissal remedy be dismissed. The Commission did not grant the relief sought by Mr Richards and upheld the respondent's stance that the dismissal was lawful. This decision highlights the importance of meeting the legal criteria for unfair dismissal claims and the application of business transfer exceptions.

Orders