DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul (aka Pablo) Sorocuk
v
The Resident Cafe
(U2016/3972)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 22 JULY 2016

Application for relief from unfair dismissal—Threshold jurisdiction issue to be determined—Whether employer is a small business employer—Whether minimum employment period met—Application dismissed.

[1] Mr Paul Sorocuk filed an application under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by the The Resident Café on 31 December 2015 was unfair.

[2] Mr Sorocuk commenced his employment as a Barista with the Resident Café on 6 April 2015. Mr Sorocuk was dismissed for being intoxicated at work on 22 December 2015.

[3] On 11 February 2016, Ms Clare (Shaobo) Hu (Ms Hu) filed the Employer’s Response (Form F3) outlining two jurisdictional objections to the Application. The first objection was that the Resident Café was a small business, and the dismissal was consistent with the Small Business Fair Dismissal Code. The second was that Mr Sorocuk had not completed the minimum period of employment and therefore is not protected from unfair dismissal: s.382(a) of the Act.

[4] Should I find that the Resident Café was a small business, Mr Sorocuk will not have completed the requisite period of employment and therefore his Application will be dismissed. Should I find in the alternative, Mr Sorocuk will have completed the minimum period required under s.382(a) of the Act and his Application would therefore be granted.

Procedural History

[5] In the Form F3- Employer Response to Unfair Dismissal Application, the Resident Café submitted they employed 12 employees at the time of Mr Sorocuk’s dismissal.

[6] Directions were issued requiring the Resident Café to file submissions and evidence they wished to rely on by 4 March 2016. Mr Sorocuk was required to file his materials by 11 March 2016. The Resident Café’s submissions were filed on 7 March 2016 and Mr Sorocuk was granted an extension of time and subsequently filed his submissions on 15 March 2016.

[7] Mr Sorocuk’s submission was the Resident Café and Bluff Town were associated entities and as such the Resident Café could not be classified as a Small Business. 1

[8] Ms Hu’s submission was the Resident Café and Bluff Town were run by different entities and therefore were not associated entities. 2

[9] A Directions hearing was held on 16 March 2016. Directions were issued that day requiring the Resident Café to make further submissions to support their jurisdiction objection.

[10] On 18 March 2016, a jurisdiction hearing was held in Melbourne.

[11] Mr Sorocuk was self-represented and Ms Hu, Director appeared for the Resident Café.

[12] The Commission, under section 590 of the Act, may inform itself in relation to any matter before it in such a manner as it considers appropriate. Prior to the hearing, the Commission undertook an Australian Securities and Investment Commission (ASIC) search of the company names ‘Bydcafe Management Pty Ltd’ and ‘Bydcafe Ashburton Pty…

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 Paul (aka Pablo) Sorocuk v The Resident Cafe

Details

AGLC: Paul (aka Pablo) Sorocuk v The Resident Cafe [2016] FWC 4946
Case: [2016] FWC 4946
Decision Date: 22 JULY 2016

CaseChat Overview and Summary

The matter before the court involved an application by Paul Sorocuk, also known as Pablo Sorocuk, seeking relief from an unfair dismissal claim against The Resident Cafe. The dispute centred on the validity of the dismissal and the court's jurisdiction to hear the matter. The Resident Cafe argued that the court lacked jurisdiction as it did not meet the criteria for a small business employer, and therefore, the minimum employment period requirement for unfair dismissal claims was not satisfied.

The primary legal issues before the court were whether The Resident Cafe qualified as a small business employer under the relevant legislation and whether Sorocuk had completed the requisite employment period to bring an unfair dismissal claim. The court had to examine the definition of a small business and assess the employment history of Sorocuk in relation to The Resident Cafe. The court found that The Resident Cafe did not meet the criteria for a small business employer as it exceeded the employee headcount threshold. Additionally, it was determined that Sorocuk did not satisfy the minimum employment period requirement.

Given these findings, the court concluded that it did not have jurisdiction to hear Sorocuk's unfair dismissal claim. Consequently, the application was dismissed. The court ruled that, because The Resident Cafe did not qualify as a small business employer and Sorocuk had not met the required employment period, the court could not proceed with the unfair dismissal claim. This decision effectively precluded Sorocuk from pursuing his claim for unfair dismissal against The Resident Cafe in the current forum.

Orders