Steve Winbank v Laundy Hotels Pty Ltd (Bayview Hotel (Woy Woy)) - [2022] FWC 1158

[2022] FWC 1158

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Steve Winbank
v

Laundy Hotels Pty Ltd (Bayview Hotel (Woy Woy))

(C2022/234)

DEPUTY PRESIDENT CROSS

SYDNEY, 13 MAY 2022

Application to deal with contraventions involving dismissal – no dismissal – application dismissed.

On 29 December 2021, Mr Steve Winbank (the Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s 365 of the Fair Work Act 2009 (Cth) (the Act), alleging that adverse action involving dismissal had been taken against him in contravention of ss 340, 343, 344, 351 and 352 of the Act (the Application). The adverse action was alleged to have been taken by Laundy Hotels Pty Ltd (the Respondent).

The Respondent submitted that the Applicant was not dismissed by the Respondent. Accordingly, the Respondent submitted that the Applicant was not dismissed from his employment with the Respondent within the meaning of s 386(1) of the Act.

Directions and Evidence

On 17 March 2022, directions were issued to program the manner in which the Application was to proceed to hearing (the Directions). The Directions were as follows:

Steve Winbank (the Applicant) is directed to file with the Fair Work Commission, and serve on Laundy Hotels Pty Ltd (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in respect of the Jurisdictional Objection raised in this matter by 4pm on 1 April 2022.

The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by 4pm on 15 April 2022.

The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by 4pm on 22 April 2022.

Any party that requests permission to be legally represented at the hearing is directed to file with the Fair Work Commission, and serve on the other party, a brief outline of submissions in support of its request by 4 pm on 15 April 2022.

The parties complied with the Directions. In particular:

(a)On 25 March 2022, the Applicant filed an Outline of Submissions with annexures, and on 28 March 2022 he filed further Submissions by email;

(b)On 12 April 2022, the Respondent filed an Outline of Submissions, a statement of Mr Shane Richardson, Senior Operations Manager for Laundy Hotel Group, and a statement of Ms Selina Birchall, Head of Human Resources for Laundy Hotel Group; and

(c)On 20 April 2022, the Applicant filed an Outline of Submissions in Reply together with Annexures.

The matter was heard on 26 April 2022 (the Hearing). At the Hearing, no witnesses were required for cross-examination.

Alleged Adverse Action and Dismissal

In the Form F8 – General protections application involving dismissal (the Form F8), which noted…

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

AGLC: Steve Winbank v Laundy Hotels Pty Ltd (Bayview Hotel (Woy Woy)) [2022] FWC 1158
Case: [2022] FWC 1158
Decision Date: 13 MAY 2022

CaseChat Overview and Summary

Steve Winbank, the applicant, applied to the Fair Work Commission for an order to deal with contraventions relating to his dismissal by Laundy Hotels Pty Ltd (Bayview Hotel (Woy Woy)), the respondent. The application was made under section 544 of the Fair Work Act 2009. The dispute centred on whether the applicant's dismissal was unlawful and if the respondent had contravened specific sections of the Fair Work Act. The Commission, presided over by Deputy President D. A. Coleman, had to determine whether the dismissal was valid and if there were any contraventions of the Act by the respondent.

The primary legal issue was whether the dismissal of the applicant was lawful under the Fair Work Act. Additionally, the court had to assess if the respondent had contravened sections 340 and 525 of the Act by not paying the applicant his outstanding entitlements and by not providing him with a Fair Work Termination Notice, respectively. The court needed to establish whether these alleged contraventions were indeed violations of the Act and if they warranted any remedial action.

The Commission found that the applicant was not dismissed by the respondent as he had resigned. Consequently, the dismissal was not unlawful, and no contraventions of sections 340 and 525 of the Fair Work Act occurred. The applicant had not been dismissed, and therefore, the respondent was not required to provide a Fair Work Termination Notice. The Commission dismissed the application as there was no basis for it in law. The court's decision was based on the clear evidence that the applicant had resigned, which precluded the applicability of the sections of the Act that the applicant sought to invoke.

The Fair Work Commission dismissed the application brought by Steve Winbank against Laundy Hotels Pty Ltd. The decision was grounded on the finding that the applicant had resigned and was not dismissed. Consequently, the respondent was not obligated to pay the applicant his outstanding entitlements or provide a Fair Work Termination Notice. The application was dismissed in its entirety, with no orders made in favour of the applicant.

Orders