Robert Corney v AJL Industries Pty Ltd - [2025] FWC 851

[2025] FWC 851

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Robert Corney
v

AJL Industries Pty Ltd

(U2025/1126)

COMMISSIONER YILMAZ

MELBOURNE, 27 MARCH 2025

Application for an unfair dismissal remedy

On 2 February 2025 Mr Robert Corney made an unfair dismissal application under s.394 of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) in relation to his dismissal by AJL Industries Pty Ltd. In seeking an unfair dismissal remedy Mr Corney alleges that his dismissal on 15 January 2025 was unfair.

AJL Industries Pty Ltd (AJL) submit that it is a small business and as Mr Corney did not meet the minimum employment period, the Commission has no jurisdiction to hear the substantive application. AJL submit that Mr Corney’s employment commenced on the day it purchased the business, that being either on 27 or 28 September 2024 and the dismissal took effect on 15 January 2025, which is a period of less than 12 months service and less than the minimum employment period required by the Act’s unfair dismissal protections.

Further AJL object to the application submitting that the dismissal was a genuine redundancy and as a small business it took steps to ensure its process complied with the Small Business Fair Dismissal Code.

Both parties were self-represented. Mr Corney appeared for himself. Mr Adam Lacey, owner presented evidence and Ms Tanya Lacy who held the unpaid position of bookkeeper, administration presented witness evidence.

The Respondent’s submissions and evidence

AJL submit that it purchased the business on 27 September 2024. The café is 80 square metres and seats 20 people. Mr Adam Lacy is the owner and a 22-year-old business investor. Mr Lacy submits that when he purchased the business from Tasty Trading Pty Ltd, the contract of sale did not make provision for the transfer of employment entitlements for Mr Corney who was the only full-time employee of Tasty Trading when he negotiated the sale of the business.[1] Mr Lacy further submits that he is aware that Tasty Trading paid out all entitlements to Mr Corney and there is no continuous service following the purchase of the business to include the period of employment with Tasty Trading from 2022. Mr Lacy submits that he employed Mr Corney, and while there is no written contract, the verbal employment contract confirmed a new contract and he asserts that Mr Corney was verbally informed that his prior service with the old employer would not be recognised.[2] Mr Corney was employed as café chef on a salary of $77,064 per year plus superannuation.

AJL submit that Mr Corney was initially employed as the café chef but his salary increased significantly to $84,968 ($43 per hour and a package of $94,739.32 per annum inclusive of superannuation) when he presented himself as a person capable of personal growth and to seize the business growth opportunity in the business. This resulted in the negotiated substantive position of café manager, although responsibility for the kitchen was also retained.…

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

Case: [2025] FWC 851
Decision Date: 27 MARCH 2025

CaseChat Overview and Summary

The case of Robert Corney v AJL Industries Pty Ltd involves an application for an unfair dismissal remedy by Robert Corney against his dismissal by AJL Industries Pty Ltd. Corney, who was employed as a café chef and later promoted to café manager, alleges that his dismissal on 15 January 2025 was unfair. AJL Industries contends that Corney’s employment period with them did not meet the minimum employment requirement stipulated by the Fair Work Act 2009 and that his dismissal was a genuine redundancy, compliant with the Small Business Fair Dismissal Code.

The legal issues in this case revolve around whether Corney’s employment period with AJL Industries satisfies the minimum employment period under the Fair Work Act 2009 and whether his dismissal was a genuine redundancy. Specifically, the court needed to determine if Corney’s employment transferred from his previous employer, Tasty Trading Pty Ltd, to AJL Industries, thereby counting towards the minimum employment period. Additionally, the court had to assess if AJL Industries’ dismissal of Corney was consistent with the Small Business Fair Dismissal Code and if it constituted a genuine redundancy.

In its reasoning, the Fair Work Commission found that AJL Industries is a small business and that Corney’s employment period with them did not exceed the 12-month minimum required for unfair dismissal protection. However, the Commission also found that Corney’s employment likely transferred from Tasty Trading to AJL Industries, satisfying the minimum employment period requirement. Despite this, the Commission determined that Corney’s dismissal was a genuine redundancy because AJL Industries could no longer afford his position due to financial difficulties, and efforts to restructure the business were insufficient to retain his role. The Commission concluded that the dismissal complied with the Small Business Fair Dismissal Code and was not unfair.

The final orders of the court dismissed Corney’s application for unfair dismissal remedy, finding that the dismissal was a genuine redundancy and thus not unfair under the Fair Work Act 2009.

Orders