Stephen Winbank v Laundy Hotels Pty Ltd - [2022] FWCFB 128

[2022] FWCFB 128

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Stephen Winbank
v

Laundy Hotels Pty Ltd

(C2022/2968)

VICE PRESIDENT HATCHER
Deputy PRESIDENT MASSON
COMMISSIONER BISSETT

SYDNEY, 12 JULY 2022

Appeal against decision [2022] FWC 1158 of Deputy President Cross at Sydney on 13 May 2022 in matter number C2022/234.

Introduction

Mr Stephen Winbank has lodged an appeal, for which permission to appeal is required, against a decision of Deputy President Cross issued on 13 May 2022[1] to dismiss Mr Winbank’s application made under s 365 of the Fair Work Act 2009 (Cth) (FW Act). In his application, Mr Winbank alleged that he had been dismissed by Laundy Hotels Pty Ltd (Laundy) in contravention of Pt 3-1 of the FW Act and sought that the Commission deal with the dispute under s 368. Laundy contended, in response to the application, that it had not dismissed Mr Winbank and that the Commission consequently had no jurisdiction in respect of the application. The Deputy President accepted Laundy’s contention in this respect and dismissed the application on that basis. Mr Winbank contends in his appeal that the Deputy President erred in doing so.

In Coles Supply Chain Pty Ltd v Milford[2] (Milford) a Full Court of the Federal Court determined that it is an objective condition of a valid application under s 365 that the applicant has been dismissed, and any dispute concerning this must be resolved by the Commission in the first instance in order to determine whether it has authority to deal with the matter under s 368. The term “dismissed” in s 365 is defined in s 386(1) to mean (subject to certain exceptions in s 386(2) which are not presently relevant) that a person’s employment with the employer has been terminated on the employer’s initiative or the person has resigned from their employment but was forced to do so because of the employer’s conduct.

Factual background

The evidence at first instance concerning the relevant circumstances of Mr Winbank’s employment with Laundy was somewhat sketchy. Nobody gave sworn evidence. There were a number of documents attached to Mr Winbank’s application, and to Laundy’s response to the application. Mr Winbank filed a number of documents which combined his account of factual matters and his submissions, and attached further various documents including extracts from text message exchanges. Mr Winbank was not cross-examined. Laundy filed two statements of evidence made by Ms Selina Birchall, Head of Human Resources for Laundy, and Mr Shane Richardson, who did not identify his position with Laundy in his statement but who we infer from other material is a senior manager. Neither was cross-examined. Additional facts were asserted from the bar table at the hearing before the Deputy President.

Mr Winbank has attached to his appeal submissions a number of documents or extracts from documents, some of which were before the Deputy President but some of which appear to be new. We will admit the new material as evidence…

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 Stephen Winbank v Laundy Hotels Pty Ltd

Details

AGLC: Stephen Winbank v Laundy Hotels Pty Ltd [2022] FWCFB 128
Case: [2022] FWCFB 128
Decision Date: 12 JULY 2022

CaseChat Overview and Summary

Stephen Winbank has appealed a decision of Deputy President Cross that his application for unfair dismissal was to be dismissed for lack of jurisdiction because Laundy Hotels Pty Ltd (Laundy) had not dismissed him. In dismissing the application, the Deputy President found that there was no evidence that Laundy had terminated Mr Winbank’s employment with it. The Full Commission has granted permission to appeal and has allowed the appeal. It has quashed the decision of the Deputy President and remitted the matter back to the Commission for consideration under section 368 of the Fair Work Act 2009 (FW Act). The Full Commission found that Mr Winbank was dismissed on or about 24 December 2021. The Full Commission found that Mr Winbank’s employment was terminated at Laundy’s initiative when Mr Mills, the Hotel Manager at Bayview Hotel, sent a text message to Mr Winbank on 24 December 2021 telling him to “Delete my number” and that this was followed by Laundy’s cessation of payment of salary to Mr Winbank. The Full Commission found that it was unreasonable for Laundy to fail to countermand the text message, to rebut the inference that Mr Winbank’s employment had been terminated, or to assign Mr Winbank to reasonable alternative work at another location. The Full Commission found that Laundy’s failure to provide any witness statement from Mr Mills gave rise to a Jones v Dunkel inference that such a witness statement would not have assisted Laundy’s case.

Orders