Travis Sorensen v Designed Logistical Solutions Pty Ltd

[2024] FWC 791

[2024] FWC 791

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Travis Sorensen
v

Designed Logistical Solutions Pty Ltd

(U2023/9175)

Hollie Rose
v

Designed Logistical Solutions Pty Ltd

(U2023/9198)

COMMISSIONER SIMPSON BRISBANE, 27 MARCH 2024

Application for Unfair Dismissal Remedy – Jurisdictional Objection that Applicants have not satisfied the minimum employment period – Objection dismissed – Matter to be programmed for hearing

1. On 22 September 2023, Travis Sorensen (Mr Sorensen) and Hollie Rose (Ms Rose) (collectively, the Applicants) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, alleging they were unfairly dismissed from their employment with Designed Logistical Solutions Pty Ltd (the Respondent).

1. On 2 February 2024, the matters were allocated to me and I listed them concurrently for a Directions Hearing on 14 February 2024. All parties attended the listing.  The Respondent raised a jurisdictional objection in its Form F3 Response to the two applications that the Applicants were not dismissed by the Respondent.   It is notable that the Form F3 Employer Response to the Application did not raise a jurisdictional objection concerning the minimum employment period, and the Respondent did not assert that it was a small business, stating that the Respondent had 25 employees.  At the Directions Hearing on 2 February 2024 the Respondent raised a jurisdictional objection that it was a small business with less than 15 employees, and accordingly, the Applicants hadn’t met the minimum employment period.

1. Given that if I was to determine the Respondent was a small business the Applicants would not satisfy the minimum employment period and it was therefore appropriate to deal with this issue before proceeding to concern the further jurisdictional objection and the substantive issue.  On 14 February 2024 I issued Directions for the filing of material relating to the Respondent’s jurisdictional objection that they had less than 15 employees at the time of termination. The Respondent failed to file material by the due date being 19 February 2024. On 21 February 2024, my chambers sent a follow up email to the Respondent seeking an explanation as to why material was not submitted in accordance with the directions. The Respondent emailed my chambers on 22 February 2024 noting that “Getting a sworn statement is difficult due to road access to Mossman and the Mossman court house having repairs from the Jasper floods.”

1. On 23 February 2024, my chambers sent a further email to the Respondent seeking they advise when they would be able to submit material. The Respondent did not reply to this email.

1. On 5 March 2024, my chambers sent a further email to the Respondent noting the failure to file or reply to the email on 23 February and I noted that if the Respondent failed to file material by 5:00pm 8 March 2024, I would dismiss the Jurisdictional Objection and list the matters for a hearing of the substantive applications. This same day, the Respondent sent an email noting the following:

“I would request the commissioner refer to the Douglas shire website and road access to Cape tribulation. We have now been isolated for 82 days. Failure of the shire give us access and support continues. The State government. It is impossible for me to get to arrange any of this necessary stuff. We had another 750t land slide that closed all access off for another 5 days. We still have not received any notification from the Douglas shire on when the road will be open again. And update on the 8th March 2024 is due by the DSC. It was meant to be the 4th March but they postponed it do to engineers and managers of the DSC now resigning under the mounting pressure. TMR is meant to be taking over control of the roads owned by the DSC but still no formal update.”

1. In response to this, I listed the matters for a further Case Management Hearing on 15 March 2024. The Respondent failed to attend this listing. Accordingly, I again issued Directions for filing of material relating to the Respondent’s jurisdictional objection that they had less than 15 employees. The email containing the Directions noted that:

“…

The Commissioner is aware that the Respondent has previously raised the issue of roads being inaccessible due to the aftermath of the recent cyclone and other whether events as the reason the Respondent has been unable to comply with earlier directions to file evidence or submissions as the Respondent could not obtain sworn statements. The Commissioner advises to overcome that issue he is content for unsigned statements to be filed, and for signed statements to be filed at a later time prior to the hearing, or alternatively they can be adopted by the witness during the telephone hearing after a witness has been sworn in.

…”

1. I listed a hearing by telephone at 12:00pm 27 March 2024.

1. The Respondent failed to file material, and the Applicants filed material on 25 March 2024. The Respondent failed to attend the hearing on 27 March 2024.

1. As the Respondent did not appear at the hearing, the statements filed by the two Applicants were effectively unchallenged and I admitted them into evidence. 

Travis Sorensen Witness Statement

1. Mr Sorensen gave evidence that on 2 September 2023 he recalled 20 staff working systematic and regular shifts. He stated that he saw these employees himself in person as well as on the work app called Deputy. Mr Sorensen stated that he thought they were systematic and regular employees as they all would expect to work one shift or more a week. He stated he can recall 5 management and admin staff, 6 housekeeping staff, 4 grounds and maintenance staff and 5 restaurant staff.

1. Mr Sorensen stated that he strongly believed the companies ‘DGBR TOURS PTY LTD’ and ‘DESIGNED LOGISTICAL SOLUTIONS PTY LTD’ are linked, and provided Current & Historical records of both companies. Mr Sorensen contended that they both share Mark Cromwell as the common director of the two companies and the principle place of business recorded for both was the same. While working for Designed Logistical Solutions, Mr Sorensen stated that he observed links between the two businesses. It was stated that the tour company Far North Escapes under the company DGBR TOURS PTY LTD would conduct a nightly walking tour based at the reception of the Ferntrees resort. Far North Escapes would very often bring customers to Ferntrees for accommodation and activities. Far North Escapes was also heavily advertised in the reception of the resort. He said he recalled 4 employees working for DGBR TOURS PTY LTD on 2 September 2023.

1. Mr Sorensen said he worked for Designed Logistical Solutions from 19 December 2022 to 2 September 2023, and attached first and final payslips.

Hollie Rose Witness Statement

1. Ms Rose gave evidence that as of 2 September 2023 there were approximately 19 staff working at Ferntrees resort. She said she believed they were systematic and regular employees, they all worked at least one shift every week. She said she recalled that there were at least 6 housekeeping employees, 3 employees for maintenance and groundskeeping, 3 management, 2 administration and 5 employees working in the restaurant (front of house, wait staff and cooks). Ms Rose gave evidence that she observed these employees both in person and on the employee app Deputy.

1. Ms Rose stated that she strongly believed the companies ‘DGBR TOURS PTY LTD’ and ‘DESIGNED LOGISTICAL SOLUTIONS PTY LTD’ are linked. Ms Rose provided Current & Historical records of both companies, which indicated they both share Mark Cromwell as the common director of the two companies and had the same principle place of business recorded.

1. Ms Rose stated that while working for Designed Logistical Solutions, she observed links between the two businesses and gave similar evidence to Mr Sorensen in this regard. Ms Rose said she recalled 4 employees working for DGBR TOURS PTY LTD on 2 September 2023.

1. Ms Rose gave evidence that she worked for Designed Logistical Solutions from 19 December 2022 to 2 September 2023, and provided first and final payslips.

CONCLUSION

1. The onus rests with the Respondent, having raised the jurisdictional objection, to make its case.  The Respondent has failed to appear, and the material filed by the Applicants supports the conclusion that the Respondent is not a small business.  On the basis of the materials before me I am not satisfied that the Respondent is a small business employer, and this jurisdictional objection is dismissed.  I do not intend to list a further directions hearing to set dates for the hearing and determination of the further jurisdictional objection and the substantive issues.  I intend to issue directions for the filing of evidence and submissions regarding both matters and for the issues to be heard concurrently.  Those directions will be issued in due course. 

COMMISSIONER

Appearances:

Travis Sorensen and Hollie Rose on their own behalf.

Hearing details:

2024
By Telephone
27 March

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