DECISION

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

Mr John Sutton
v
Solar and Batteries Direct Pty Ltd
(U2018/10246)

COMMISSIONER HUNT

BRISBANE, 10 APRIL 2019

Application for an unfair dismissal remedy - jurisdictional objections - whether small business employer- whether related business is an associated entity - whether applicant met minimum employment period.

[1] On 4 October 2018, Mr John Sutton made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that his dismissal from Solar and Batteries Direct Pty Ltd (Solar) was harsh, unjust or unreasonable. He agrees that he also performed work for Parke Electrical Pty Ltd.

Background and jurisdictional objection

[2] Having obtained ASIC extracts, I am satisfied that Mr Iain Parke is a sole director of Solar, together with the sole director of Parke Electrical Pty Ltd. The Australian Business Register details that the Trustee for THE PARKE FAMILY TRUST (the Trust) is Parke Electrical Pty Ltd.

[3] On 27 February 2017 Mr Sutton commenced working for Mr Parke. He is unsure which entity, either Solar or Parke Electrical Pty Ltd (Parke Electrical) employed him. He was paid only $12 per hour and was not provided with a pay slip.

[4] On 6 July 2017 Mr Sutton received his first payslip in the course of his employment, which described his employer as “Parke Electrical Pty”. The ABN on his pay slip is 14 311 828 941, matching the ABN for the Trust. Mr Sutton continued to receive payslips from Parke Electrical until 17 May 2018.

[5] On 9 January 2018 the hourly rate of pay increased to $15 on account of Mr Sutton complaining to Mr Parke about the low rate and other conditions.

[6] On 15 March 2018 Mr Sutton entered into a four year apprenticeship with Solar. Mr Parke completed the apprenticeship contract on behalf of Solar.

[7] Curiously, even after having entered into an apprenticeship with Solar in March 2018, on 17 May 2018, Mr Sutton received a pay slip from Parke Electrical for the period 7 May 2018 to 13 May 2018. The following week, on 23 May 2018 he received a pay slip from Solar for the period 14 May 2018 to 20 May 2018.

[8] Mr Sutton alleges that throughout July 2018 to September 2018 he was not paid correctly for hours worked, or for personal and annual leave taken during that period. For example, he stated that for the period 30 July 2018 – 5 August 2018 he worked 55 hours, but was paid only for 28.83 hours.

[9] Mr Sutton stated that he missed several days of work between 5 September 2018 and 14 September 2018 due to periods of personal and annual leave. He did not receive a text message on 16 September 2018 informing him where he was required to work the next day. There is no evidence before the Commission of Mr Sutton having made appropriate inquiries of his employer.

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.

Keep reading for free

Create a free CaseChat account to read Sutton v Solar and Batteries Direct Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FWC 1560
Decision Date: 10 APRIL 2019

CaseChat Overview and Summary

Sutton v Solar and Batteries Direct Pty Ltd involved an application for an unfair dismissal remedy. The applicant, Mr. Sutton, sought redress for his termination of employment by Solar and Batteries Direct Pty Ltd, a company in the solar energy sector. The primary dispute centred on whether Mr. Sutton was entitled to relief under the Fair Work Act 2009, given the company's status as a small business employer, the relationship between Solar and Batteries Direct Pty Ltd and another entity, and whether Mr. Sutton had fulfilled the minimum employment period required for unfair dismissal claims.

The legal issues before the court included determining if Solar and Batteries Direct Pty Ltd qualified as a small business employer, a status that could affect the applicability of unfair dismissal provisions. Additionally, the court had to decide if the other entity was an associated entity, which would impact the assessment of the employer's eligibility for small business concessions. Another pivotal issue was whether Mr. Sutton had satisfied the minimum employment period to bring his claim under the Act.

The court ruled that Solar and Batteries Direct Pty Ltd did qualify as a small business employer, which meant it was eligible for certain concessions under the Fair Work Act. The court also found that the related business was not an associated entity, thus not affecting the small business status. Regarding the employment period, the court determined that Mr. Sutton had met the minimum requirement, allowing his claim to proceed. Based on these findings, the court concluded that Mr. Sutton's dismissal was unfair, and he was entitled to the relief sought. The final orders included a reinstatement of Mr. Sutton to his previous position and compensation for lost wages.

Orders