Ms Vanessa Hillie v World Square Pub - [2012] FWA 6806

Note: An appeal pursuant to s.604 (C2012/5132) was lodged against this decision - refer to Full Bench decision dated 22 February 2013 [[2013] FWCFB 1198] for result of appeal.

[2012] FWA 6806

FAIR WORK AUSTRALIA

DECISION

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

Ms Vanessa Hillie
v
World Square Pub
(U2011/15092)

COMMISSIONER CAMBRIDGE

SYDNEY, 10 AUGUST 2012

Unfair dismissal - jurisdictional objection - ss.382, 383 and 384 - minimum employment period - period of continuous service - transferring employee - s.311 - when does a transfer of business occur - what constitutes an arrangement between old and new employer - jurisdictional objection dismissed.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009, (the Act). The application was made by Vanessa Hillie (the applicant), and the respondent employer has been identified as John Lucas Hotel Management Services Pty Ltd(ABN: 93055535520)trading as World Square Pub (the employer) or (the new employer).

[2] The application was lodged at Sydney on 28 December 2011. The application nominated that the date that the applicant’s dismissal took effect was 16 December 2011. The employer initially contested the date of the applicant’s dismissal but subsequently withdrew any objection to the matter proceeding on the basis that it may have failed to meet the time limit prescribed by subsection 394 (2) of the Act.

[3] Conciliation of the claim was unsuccessful and the employer pressed a jurisdictional objection and sought to have that objection determined before any other proceedings were held. The jurisdictional objection that was raised by the employer contended that the applicant had not completed the minimum employment period at the date of the termination of employment.

[4] On 13 April 2012, the matter was listed for Conference/Hearing proceedings before Fair Work Australia (FWA). The Conference/Hearing was held to deal with the jurisdictional objection taken by the employer. On 13 April the applicant was represented by the Liquor & Hospitality Division of United Voice (United Voice), and the employer was represented by the Australian Hotels Association (NSW) (AHA). A number of difficulties arose in respect to the representation arrangements for the applicant. In due course, by way of written communication dated 17 May 2012, United Voice withdrew from any further involvement in the matter.

[5] Eventually the matter proceeded to Jurisdictional Conference/Hearing before FWA conducted in Sydney on 10 July 2012. At the Jurisdictional Hearing the employer was represented by Mr R Kakwani and Mr P Ryan from the AHA. Mr Kakwani advanced the case in support of the jurisdictional objection made by the employer. Mr Kakwani called Mr John Phillip Lucas to give evidence as a witness. Mr Lucas is the sole Director of the employer and he attested to the veracity of a statement 1 that he had made for the proceedings.

[6] The applicant appeared unrepresented and she gave evidence as a witness. The applicant sought to rely upon a statement 2…

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 Ms Vanessa Hillie v World Square Pub 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: [2012] FWA 6806
Decision Date: 10 AUGUST 2012

CaseChat Overview and Summary

The respondent, Ms Vanessa Hillie, brought an action against the appellant, World Square Pub, seeking relief for unfair dismissal. The Federal Circuit Court of Australia considered the matter, which involved the interpretation of certain sections of the Fair Work Act 2009 (Cth) and the application of the law to the specific circumstances of the case. The primary issue for the court was whether Ms Hillie's employment had been terminated unfairly and whether the court had jurisdiction to hear the matter. This hinged on the interpretation of sections 382, 383, and 384 of the Fair Work Act, specifically the requirement of a minimum employment period and the concept of continuous service. Additionally, the court had to determine whether Ms Hillie's employment was transferred to a new employer and if the requirements of section 311 were satisfied.

The court examined the facts of the case to establish whether a transfer of business had occurred and what constituted an arrangement between the old and new employer. The respondent argued that her employment had been transferred to a new entity, thus satisfying the continuity of employment requirement. The appellant contended that no such transfer had occurred and that the jurisdictional objection should be upheld. The court considered the legislative framework and relevant case law to assess the arguments presented by both parties. Ultimately, the court concluded that the jurisdictional objection was unfounded and that the matter should proceed to determine the merits of the unfair dismissal claim.

Having dismissed the jurisdictional objection, the court found that it had jurisdiction to hear the matter and that the claim would proceed to a hearing on the merits. The respondent's employment was found to have been transferred to a new entity, satisfying the continuity of employment requirement. The court held that the matter would continue to be heard to determine whether Ms Hillie's dismissal was indeed unfair. No final orders were made in this part of the decision, as the court was only addressing the jurisdictional issue.

Orders