Ms Evangeline Ireland v Lumigold Pty Ltd - [2024] FWC 3378

[2024] FWC 3378

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Evangeline Ireland
v

Lumigold Pty Ltd

(U2024/5742)

COMMISSIONER JOHNS

MELBOURNE, 23 DECEMBER 2024

Application for an unfair dismissal remedy - jurisdictional objections - Minimum Employment Period - casual employee - Small Business Fair Dismissal Code - objections dismissed

On 21 May 2024, Ms Evangeline Ireland (Applicant) made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (FW Act) for a remedy in respect of her dismissal by Lumigold Pty Ltd (Respondent).

On 30 May 2024, the Respondent filed a response to the unfair dismissal application. In its response, the Respondent objected to the Commission exercising jurisdiction in relation to the application on the basis that, it submitted:

a)   the Applicant did not meet the minimum employment period (MEP Objection),
b)   the Applicant was not dismissed (Not Dismissed Objection), and
c)   the Respondent is a small business who complied with the Small Business Fair Dismissal Code (SBFDC Objection).[1]

The proceedings

On 1 October 2024 I conducted a determinative conference to decide the Jurisdictional Objections (JO DC). In advance of the JO DC, the parties filed materials which were compiled in a Digital Tribunal Book (DTB). For completeness, I set out the below materials that were relied upon the parties. I have had regard to all these materials in coming to this decision:

Exhibit	Document title	Date
1	Form F2	21-05-2024
1.1	“Email from deputy showing that my employer immediately removed my shifts after sending dismissal”	Undated
1.2	“Email from employer responding to my request for unpaid wages”	Undated
2	Form F3 and attachments	30-05-2024
2.1	Small Business Fair Dismissal Code	Undated
2.2	Form F3	30-05-2024
3	Email from Respondent attaching submissions	26-08-2024
3.1	Second email from Respondent attaching submissions	26-08-2024
3.2	Third email from Respondent attaching submissions	26-08-2024
4	Email from Applicant attaching submissions	11-09-2024
4.1	List of documents	11-09-2024
4.2	Outline of argument - jurisdiction	11-09-2024
4.3	Outline of argument - merits	11-09-2024
4.4	Statement of Evidence	11-09-2024
4.5	Email to Respondent re underpayment of wages	15-05-2024
4.6	Email from Respondent re underpayment of wages	15-05-2024
4.7	Email to Respondent re underpayment of wages	15-05-2024
4.8	Statement of attainment	22-08-2018
4.9	Training acknowledgment form	30-08-2023
50	Photographs as attachment	Various

Prior to the JO DC, my Associate called the representative of the Respondent, Ms Shixian Feng, to ask if she required an interpreter. Ms Feng chose to proceed without one.

The JO DC was conducted by video using Microsoft Teams. At the JO DC, the Applicant represented herself, and the Respondent was represented by Ms Feng.

During the JO DC, I rejected the MEP Objection and Not Dismissed Objection. My reasons for those decisions follow. So too my decision to now also reject the SBFDC Objection.

Factual circumstances

The following factual matters were either agreed…

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 Ms Evangeline Ireland v Lumigold Pty Ltd

Details

AGLC: Ms Evangeline Ireland v Lumigold Pty Ltd [2024] FWC 3378
Case: [2024] FWC 3378
Decision Date: 23 DECEMBER 2024

CaseChat Overview and Summary

Ms Evangeline Ireland filed an application with the Fair Work Commission (FWC) seeking a remedy for her dismissal by Lumigold Pty Ltd, asserting that her dismissal was unfair under the Fair Work Act 2009 (FW Act). Lumigold Pty Ltd responded by raising three jurisdictional objections to the FWC exercising its jurisdiction over the matter. The objections were: (a) that Ms Ireland did not meet the minimum employment period (MEP) required to bring an unfair dismissal claim; (b) that Ms Ireland was not dismissed; and (c) that Lumigold Pty Ltd, being a small business, complied with the Small Business Fair Dismissal Code. The Commissioner, Johns, conducted a determinative conference to address these objections. The Commissioner found that Ms Ireland had met the minimum employment period, as her prior service with the previous owners of Wild Rose Cottage, which was purchased by Lumigold Pty Ltd, should be recognised due to the lack of written notification to employees that their previous service would not be recognised. Furthermore, the Commissioner concluded that Ms Ireland was indeed dismissed, as Lumigold Pty Ltd terminated her employment following her complaints about underpayment, which constituted an exercise of her workplace rights. Lastly, the Commissioner rejected the argument that Lumigold Pty Ltd complied with the Small Business Fair Dismissal Code, finding that the company failed to provide any reason for the dismissal, offer a warning, or provide an opportunity for Ms Ireland to respond or rectify any issues. Consequently, the jurisdictional objections were dismissed, and the matter was scheduled for a mentions and directions hearing to program the substantive unfair dismissal matter for a further hearing to determine its merits.

Orders