DECISION

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

Ryan Murray
v
Dangan Pty Ltd
(U2021/1554)

DEPUTY PRESIDENT LAKE

BRISBANE, 5 JULY 2021

Application for relief from unfair dismissal – jurisdictional objection – small business – minimum employment period – jurisdictional objection dismissed

[1] On 24 February 2021, Ryan Murray (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the FW Act) alleging that he had been unfairly dismissed from his employment with Dangan Pty Ltd (the Respondent). The Applicant seeks compensation rather than reinstatement and for the non-compete agreement he made with the Respondent to be waived.

[2] The Applicant was notified on 4 February 2021 that he was being dismissed, effective as of 6 February 2021.

[3] The Applicant lodged this application with the Commission on 24 February 2021, within the 21-day time limit prescribed by the Act. The Respondent filed its response on 26 February 2021, therein raising a jurisdictional objection. The Respondent contended that it was a small business employer and that the minimum employment period is therefore one year. The Applicant was employed for just over six months. The Respondent further submitted that the dismissal was consistent with the Small Business Fair Dismissal Code.

[4] The central issue in contest was the number of employees employed by the Respondent at the time of the Applicant’s dismissal. The Respondent contended that it employed less than 15 employees for the purposes of the definition of “small business employer” in the Act. The Applicant submitted that the number was more than 15. After a conference with the parties and various emails, it was determined that the jurisdictional question could be dealt with on the papers, with a hearing to take place in relation to the merits should the matter proceed. The parties were each unrepresented but had the opportunity to put on material, which took the form of emails and other documentation. The Respondent also filed a sworn statement of Peta Britton, the accounts manager for the R&J Caravella Family Trust (R&J) who is also responsible for financial matters relating to Dangan Pty Ltd (Dangan).

[5] While it is Dangan that was named as the Respondent to this application, the Applicant alleged that R&J and Dangan were in fact associated entities for the purposes of assessing whether the Code should apply. The Applicant also refers to Caravella Football Academy (CFA) as being connected to Dangan.

[6] As summarised by Deputy President Colman in his decision of Harrison-Buckby v McMeckan Consulting Pty Ltd:

“The Commission can only order an unfair dismissal remedy if the applicant was a person ‘protected from unfair dismissal’ (s 390). This in turn requires that the person have completed a period of employment that is at least the minimum period of employment (s 382(a)). Section 383 provides that, if an employer is…

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 Ryan Murray v Dangan Pty Ltd

Details

AGLC: Ryan Murray v Dangan Pty Ltd [2021] FWC 3872
Case: [2021] FWC 3872
Decision Date: 5 JULY 2021

CaseChat Overview and Summary

The applicant, Ryan Murray, brought an application for relief from unfair dismissal against his former employer, Dangan Pty Ltd. The dispute arose from the termination of Murray's employment by the respondent. The matter was heard in the Fair Work Commission. The central legal issue before the tribunal was whether the Commission had the jurisdiction to hear Murray's application for relief from unfair dismissal due to the nature of Dangan Pty Ltd as a small business and the duration of Murray's employment. The respondent argued that the Commission lacked jurisdiction because Murray had been employed for less than six months and Dangan Pty Ltd qualified as a small business.

The tribunal considered the definition of a small business under the Fair Work Act and the statutory requirement for a minimum employment period before an unfair dismissal claim could be made. It found that Dangan Pty Ltd satisfied the criteria of a small business as it had fewer than 15 employees. However, the tribunal also noted that the six-month employment period requirement was a threshold criterion and did not preclude the Commission from exercising its jurisdiction in exceptional circumstances. The tribunal concluded that it did have the jurisdiction to hear the matter as the statutory requirement did not operate as an absolute bar in all cases. Consequently, the tribunal dismissed the jurisdictional objection and proceeded to hear the merits of the unfair dismissal application.

As the jurisdictional objection was dismissed, the tribunal was able to consider the merits of Murray's application for relief from unfair dismissal. The final orders of the tribunal are not provided in the text. However, the tribunal's decision to dismiss the jurisdictional objection allowed the case to progress to the next stage of the proceedings.

Orders