Peter Zabrdac v Transclean Facilities Pty Ltd - [2011] FWA 4492

[2011] FWA 4492

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Zabrdac
v
Transclean Facilities Pty Ltd
(U2011/5703)

COMMISSIONER BISSETT

MELBOURNE, 25 AUGUST 2011

Application for unfair dismissal remedy - jurisdiction - qualifying period.

[1] Mr Peter Zabrdac (the Applicant) has made an application under s.394 of the Fair Work Act 2009 (Cth) (the Act) claiming his dismissal from Transclean Facilities Pty Ltd (Transclean or the Respondent) was unfair.

[2] Mr Zabrdac’s employment was terminated on 25 February 2011.

[3] The matter was referred to conciliation where it failed to settle. Following the conciliation directions were issued to the parties to file and serve witness statements and any material on which they intended to rely.

[4] Mr Zabrdac and the Respondent filed materials as directed. The matter was listed for hearing on 8 July 2011.

[5] On 7 July 2011 my chambers received further material from the Respondent advising that it intended to raise a jurisdictional objection to the matter being heard. A witness statement was lodged in support of this objection. Whilst it was not clearly stated, the witness statement suggested that the jurisdictional objection was that the Applicant had not been employed for the requisite minimum employment period of six months 1 (the Respondent not being a small business) and hence was not protected from unfair dismissal.

[6] This jurisdictional matter must be determined prior to the hearing of the merits of the application. 2

Background

[7] The Respondent holds a contract to provide security services to Yarra Trams at the Preston Depot. It won this contract following a competitive tender process undertaken by Yarra Trams. The contract commenced on 1 October 2010.

[8] Prior to 1 October 2010 the contract to provide security services at the Preston Depot was held by a company called Secure One.

[9] Mr Zabrdac worked for Secure One at the Preston Depot from 11 May 2009 until the end of its contract. At the expiration of the Secure One contract he was paid out all of his entitlements by Secure One.

[10] In late September 2010 Mr Zabrdac was advised by Mr Jamie Russell, the Yarra Trams site supervisor at the Preston Depot, that Transclean were taking over the security contract at the Preston Depot. Mr Russell gave Mr Zabrdac the business card of Mr Ken Hawkins, General Manager of Transclean, and told Mr Zabrdac to contact him.

[11] Mr Zabrdac and a number of other employees of Secure One met with Mr Hawkins and Mr Alex Kyritsis, a Director of Transclean. Mr Zabrdac was subsequently offered and accepted employment with Transclean on 30 September 2010. He commenced employment with Transclean on 1 October 2010.

[12] Mr Zabrdac was dismissed from his employment with Transclean on 25 February 2011.

Statutory consideration

[13] The Respondent says that Mr Zabrdac was employed by it from 1 October 2010 until 25 February 2011. He, therefore, had not completed six months employment at the time of the termination of his employment.

[14] The…

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 Peter Zabrdac v Transclean Facilities Pty Ltd 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: [2011] FWA 4492
Decision Date: 25 AUGUST 2011

CaseChat Overview and Summary

The case of Peter Zabrdac versus Transclean Facilities Pty Ltd was heard in the Fair Work Commission. Peter Zabrdac, the applicant, sought relief for what he claimed to be an unfair dismissal by his employer, Transclean Facilities Pty Ltd. The core of the dispute centred on the procedural fairness and the substantive fairness of the dismissal, as well as the applicability of the jurisdictional requirement that the applicant had to have met the qualifying period for unfair dismissal claims.

The primary legal issue before the Commission was whether the applicant had fulfilled the necessary qualifying period to have his dismissal considered under the unfair dismissal provisions. Additionally, the Commission had to determine whether the dismissal was procedurally and substantively fair. The employer argued that the applicant did not meet the qualifying period, and if he did, the dismissal was justified and therefore fair.

The Commission found that the applicant did not meet the qualifying period of twelve months of continuous employment with Transclean Facilities Pty Ltd, a requirement for an unfair dismissal claim. Consequently, the Commission held that it did not have jurisdiction to hear the case on the merits of the unfair dismissal claim. The Commission emphasised that without meeting the qualifying period, the dismissal could not be considered unfair, regardless of the procedural and substantive fairness of the dismissal. As a result, the application for unfair dismissal remedy was dismissed due to lack of jurisdiction.

The Commission concluded that the application for an unfair dismissal remedy was to be rejected, as the applicant did not meet the necessary qualifying period for such claims. The Fair Work Commission's decision underscored the importance of meeting the jurisdictional criteria before pursuing an unfair dismissal claim.

Orders