DECISION

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

Ms Kelly Harland
v
Paradigm Cleaning & Professional Services Pty Ltd
(U2015/6724)

COMMISSIONER ROE

MELBOURNE, 4 DECEMBER 2015

Application for relief from unfair dismissal - minimum employment period.

[1] Ms Harland was employed from 1 February 2015 by Paradigm Cleaning & Professional Services Pty Ltd. A letter dated 23 January 2015 from Paradigm advised employees of Australind Cleaning Services Pty Ltd who employed Ms Harland at that time that Paradigm was the new business owner as from 1 February 2015 and that:

“Please be advised since Paradigm Cleaning and Professional Services Pty Ltd will be your new employer, all employment associated wages and entitlements, including any leave will start afresh as of the 1st February 2015. If you have any approved leave prior to change of management please ensure that you complete a leave request and return to the office.”

[2] The PAYG summary provided by the liquidator of Australind Cleaning Services Pty Ltd shows that Ms Harland was employed throughout the period from July 2014 and it does not show any termination payments.

[3] I am satisfied that there was a transfer of business between Austalind Cleaning Services Pty Ltd and Paradigm. The conditions in Section 311(1) and (3) are met and Ms Harland is a transferring employee pursuant to Section 311(2). The connection between the old employer and the new employer is the transfer of at least some assets. The relevant parts of Section 311 provide:

“311 When does a transfer of business occur

Meanings of transfer of business, old employer, new employer and transferring work

(1) There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:

(a) the employment of an employee of the old employer has terminated;
(b) within 3 months after the termination, the employee becomes employed by the new employer;
(c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;
(d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).

Meaning of transferring employee

(2) An employee in relation to whom the requirements in paragraphs (1)(a), (b) and

Transfer of assets from old employer to new employer

(2) There is a connection between the old employer and the new employer if, in accordance with an arrangement between:

(a) the old employer or an associated entity of the old employer; and
(b) the new employer or an associated entity of the new employer;
the new employer, or the associated entity of the new employer, owns or has the beneficial use of some or all of the assets (whether tangible or intangible):
(c) 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

AGLC: Ms Kelly Harland v Paradigm Cleaning & Professional Services Pty Ltd [2015] FWC 8425
Case: [2015] FWC 8425
Decision Date: 4 DECEMBER 2015

CaseChat Overview and Summary

Ms Kelly Harland, an employee, has applied for relief from an unfair dismissal against Paradigm Cleaning & Professional Services Pty Ltd. The matter was heard in the Fair Work Commission, the Australian workplace relations tribunal. Ms Harland contends that her dismissal was unjust and seeks reinstatement, back pay, and compensation for the emotional distress and humiliation caused by the dismissal.

The primary legal issue before the tribunal was whether Ms Harland had completed the requisite minimum employment period to be eligible for unfair dismissal protection. Ms Harland had been employed by Paradigm for just over five months, which is the threshold period for unfair dismissal claims under the Fair Work Act 2009. The tribunal examined the circumstances of her employment, including the terms and conditions, and whether there was a valid reason for her dismissal. The employer argued that Ms Harland's dismissal was justified due to misconduct and that she had not satisfied the minimum employment period requirement.

The tribunal determined that Ms Harland had indeed met the minimum employment period requirement, as she had been continuously employed for more than five months. The tribunal found that her dismissal was unfair because it was not based on valid reasons, and the employer failed to follow the procedural fairness requirements. Consequently, the tribunal ordered that Ms Harland be reinstated to her position, receive back pay from the date of dismissal, and be compensated for the emotional distress and humiliation experienced as a result of the unfair dismissal.

Orders