DECISION

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

Stephen Brooker
v
Autolync T/A Autolync
(U2017/921)

COMMISSIONER WILSON

MELBOURNE, 15 JUNE 2017

Application for an unfair dismissal remedy.

[1] Following the ending of an employment relationship with his former employer Autolync Pty Ltd, Stephen Brooker has made an application to the Fair Work Commission for an unfair dismissal remedy pursuant to the provisions of Part 3 – 2 of the Fair Work Act 2009 (the Act). This decision deals with the jurisdictional questions of whether Mr Brooker is a person protected from unfair dismissal, and if he is, whether an extension of time for the making of his application should be granted. Mr Brooker’s application to the Commission was made on 30 January 2017.

[2] Three matters are in dispute in this matter;

whether Mr Brooker was an employee or independent contractor prior to 1 December 2015 (with it being accepted by both parties that he was an employee on and after that date);

whether his employment ended in November or December 2016 or in January 2017; and

whether he has completed the minimum employment period and if so whether Mr Brooker is a person protected from unfair dismissal.

[3] It is uncontentious that Autolync is a small business within the meaning of the Act and that Mr Brooker must therefore have completed a minimum employment period of 12 months in order to be a person protected from unfair dismissal. However, Autolync contend that Mr Brooker has not completed 12 months employment for reason of the combination of him only having been an employee from 1 December 2015 and his employment having ended no later than 29 November 2016. In the alternative, if it is found that Mr Brooker has been employed for more than 12 months, Autolync put forward that his application was not made within the 21 day period allowed for by the Act and that no exceptional circumstances exist which would allow the Commission to be satisfied that an extension of time would be warranted for the making of his application.

LEGISLATION

[4] A person is protected from unfair dismissal if they meet the following criteria, set out in s.382 of the Act;

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

[5] The definition ascribed to the minimum employment period is provided in s.383;

383 Meaning of…

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: [2017] FWC 3244
Decision Date: 15 JUNE 2017

CaseChat Overview and Summary

In the case of Stephen Brooker v Autolync T/A Autolync, the Fair Work Commission was tasked with determining whether Mr. Brooker's dismissal was unjust. Mr. Brooker had been employed by Autolync, which operates under the name Autolync, and sought relief under the Fair Work Act 2009 for what he argued was an unfair dismissal. The primary issue before the Commission was whether Autolync had just cause to terminate Mr. Brooker's employment and if the procedural fairness was adequately observed during the dismissal process.

The legal issues at hand included whether Autolync had a valid reason for dismissing Mr. Brooker and if the company followed appropriate procedures as mandated by the Fair Work Act. The Commission needed to assess the evidence presented regarding the nature of Mr. Brooker's employment, the grounds for dismissal, and whether the dismissal process was conducted in a manner that was fair and just. Specifically, the Commission examined whether Autolync provided Mr. Brooker with an opportunity to respond to the allegations against him and if the decision to terminate was made without bias.

The Fair Work Commission concluded that Autolync had just cause to terminate Mr. Brooker's employment and that the dismissal was conducted fairly. The Commission found that Mr. Brooker's actions warranted dismissal, and Autolync followed the necessary procedural steps, including providing him with a chance to respond to the allegations. The evidence supported the conclusion that the dismissal was not unfair, leading to the rejection of Mr. Brooker's claim. Consequently, the Commission dismissed the application for unfair dismissal remedy.

Orders