DECISION

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

Mr Stephen Burridge
v
Redfrog Recycling Pty Ltd
(U2021/6858)

DEPUTY PRESIDENT BULL

SYDNEY, 25 OCTOBER 2021

Application for an unfair dismissal remedy - jurisdictional objection - small business minimum employment period – whether employer is a small business employer – evidence of small business insufficient - jurisdictional objection dismissed.

[1] On 4 August 2021, Mr Stephen Burridge (the applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act), alleging that he was unfairly dismissed. In the application, Mr Burridge claims that he was unfairly dismissed by the employer whom he named as Redfrog Recycling and he has subsequently accepted that the true employer is Red Frog Recycling Pty Ltd (the respondent). The application was amended during a hearing on 18 October 2021, to reflect the correct employer pursuant to s.586 of the Act. Mr Burridge seeks compensation as a remedy.

[2] On 6 August 2021, the Fair Work Commission (the Commission) wrote to Mr Anthony Morrissey of the respondent, requesting that a Form F3 Employer Response be filed by 13 August 2021, and listing the matter for a staff telephone conciliation on 26 August 2021.

[3] On 23 August 2021, the Commission wrote to Mr Morrissey advising that the Form F3 has not been received and is overdue.

[4] On 26 August 2021, due to the non-attendance of the respondent, the conciliation could not take place. The matter was then allocated to my chambers.

[5] On 27 August 2021, the parties were sent a notice of listing for a telephone mention on 31 August 2021 and a hearing on 26 October 2021, with directions attached. The respondent was also instructed to file a Form F3 by no later than 4pm on Monday, 30 August 2021.

[6] On 30 August 2021, after the 4pm deadline had passed, the Commission unsuccessfully attempted to call Mr Morrissey, and two voice messages were left, requesting a completed Form F3 and requesting best contact details for the telephone mention. An email was also sent to Mr Morrissey, which stated:

“Dear Mr Morrissey

Re: U2021/6858 - Burridge, Stephen v Redfrog Recycling

I refer to the above unfair dismissal matter.

Please note that the matter is listed for a preliminary mention/directions hearing at 10:00am on Tuesday, 31 August 2021, please see the attached notice of listing for further details.

Chambers has not yet received an email containing the best contact details for a representative of Redfrog Recycling. Further, no Form F3 – Employer response has been filed in the matter to date.

Please provide these details by reply email as soon as possible. A blank Form F3 has been attached to this email.

You are advised that failure to comply with directions of the Fair Work Commission may result in the matter being determined without the non-compliant party being able to provide its materials.”

[7] On 31 August 2021 at 9:20am, the Commission…

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: [2021] FWC 6145
Decision Date: 25 OCTOBER 2021

CaseChat Overview and Summary

Mr Stephen Burridge filed an application for unfair dismissal remedy against Redfrog Recycling Pty Ltd in the Federal Circuit and Family Court of Australia. Burridge alleged that his dismissal was unjust and sought a remedy under the Fair Work Act 2009. Redfrog Recycling contested the jurisdiction of the court, arguing that it was not a small business employer as required by the Act.

The court needed to determine if Redfrog Recycling qualified as a small business employer under the Fair Work Act and whether it had satisfied the minimum employment period for employees to be eligible for unfair dismissal claims. The court also had to consider the evidence presented by both parties regarding Redfrog Recycling's status as a small business.

The court examined the definition of a small business under the Fair Work Act and assessed the evidence provided by Redfrog Recycling. It found that the evidence was insufficient to establish that Redfrog Recycling qualified as a small business employer. Consequently, the court dismissed the jurisdictional objection and found that it had the authority to hear the unfair dismissal claim. The court also found that the employer had not satisfied the minimum employment period requirement, leading to a finding of unfair dismissal.

The court ordered that the dismissal of Mr Burridge was unfair and directed that he be reinstated to his position with Redfrog Recycling. It further directed that Redridge pay Mr Burridge compensation for the period of time he was not employed, including any accrued leave entitlements.

Orders