DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Skye Ilsley
v
Premier Hotel T/A Premier Hotel
(U2017/13356)

COMMISSIONER PLATT

ADELAIDE, 4 APRIL 2018

Application for relief from unfair dismissal – jurisdictional objections – applicant dismissed at the initiative of the employer – employer not a small business employer – minimum employment period of 6 months met –– jurisdictional objections dismissed.

Summary

[1] On 15 December 2017, Ms Ilsley lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by her former employer Premier Hotel T/A Premier Hotel (Premier Hotel) on 27 November 2017.

[2] On 11 January 2018 Mr Karthik Dorairaj, Director/Owner of Premier Hotel, lodged a form F3 Employer Response and form F4 Objections to Unfair Dismissal Application, and contended that Ms Ilsley was not dismissed, that Premier Hotel is a small business employer that Ms Ilsley she did not complete the applicable minimum employment period (MEP) of 12 months.

[3] A hearing to deal with the jurisdictional objections was conducted by way of telephone conference on 5 and 9 March 2018. Ms Ilsley represented herself and Mr Karthik Dorairaj represented Premier Hotel.

Is Premier Hotel a small business within the meaning of ss.383 and 384 of the Act?

[4] Mr Dorairaj submitted a list of persons employed by Premier Hotel and their earnings for each week in the year before the dismissal.¹ I have made a confidentiality order pursuant to s.594 of the Act in respect of the information contained in that list including the names of persons who have been and/or are employed by Premier Hotel. For privacy reasons, employees referred to in the spreadsheet who were not present at the hearing will be referred to by their first and last initials.

[5] At the first hearing on 5 March 2018, the parties reviewed the names and gross weekly earnings for the employees listed in Exhibit R1 for period 21 June 2017 to 15 January 2018. It was agreed that JC, MC, SaC, BF, SF, AF, RJV, LK, JL, MM, EM, SMc, IM, HM, SM, KN, CO, VO, BR, SR, CS and SPW were not employed by Premier Hotel as at the date of the alleged dismissal.² Exhibit R1 was amended and admitted as Exhibit R1A to reflect those persons excluded and was then provided to the parties. Premier Hotel was required to provide details of the number of hours worked by the remainder of the employees for each week in the period from 21 June 2017 to 27 November 2017, and the supporting timesheets. Ms Ilsley was invited to review and comment upon this data.

[6] On 8 March 2018, Premier Hotel submitted a spreadsheet which detailed the hours worked each week by each employee listed in Exhibit R1A. This document was received as Exhibit R2.

[7] The content of Exhibit R2 was reviewed at the second hearing on 9 March 2018.

[8] At the second hearing…

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 Skye Ilsley v Premier Hotel T/A Premier Hotel

Details

AGLC: Skye Ilsley v Premier Hotel T/A Premier Hotel [2018] FWC 1932
Case: [2018] FWC 1932
Decision Date: 4 APRIL 2018

CaseChat Overview and Summary

The case of Skye Ilsley against Premier Hotel T/A Premier Hotel involved an application for relief from unfair dismissal. The applicant, Skye Ilsley, sought relief from dismissal under the Fair Work Act 2009, and the Premier Hotel contested the application on jurisdictional grounds. The Fair Work Commission was the forum for this dispute. The core of the dispute centred on whether the Commission had the jurisdiction to hear the application, given the employer's status and the length of the applicant's employment.

The central legal issues before the Commission were whether Premier Hotel qualified as a small business employer, and whether Ilsley had met the minimum employment period of six months required for the Commission to have jurisdiction over the unfair dismissal claim. The Commission had to examine the definitions and thresholds set out in the Fair Work Act to determine if the application met the jurisdictional requirements. Specifically, the Commission considered whether the annual payroll of the employer fell below the statutory threshold for small businesses and whether the applicant had indeed been employed for a continuous period of at least six months.

In dismissing the jurisdictional objections, the Commission found that Premier Hotel did not qualify as a small business employer as its annual payroll exceeded the statutory threshold. Additionally, the Commission confirmed that Ilsley had been employed for more than six months, satisfying the minimum employment period requirement. Consequently, the Commission ruled that it had jurisdiction to hear the application for relief from unfair dismissal. The Commission's decision was grounded in a meticulous examination of statutory definitions and factual evidence regarding the employer's payroll and the applicant's employment duration.

The Fair Work Commission dismissed the jurisdictional objections raised by Premier Hotel. As a result, the Commission retained its jurisdiction to proceed with the application for relief from unfair dismissal brought by Skye Ilsley. The Commission's ruling ensured that the merits of the unfair dismissal claim could be assessed on the basis that all jurisdictional criteria had been met.

Orders