Vanessa Walker v Workcon (Qld) Pty Ltd - [2023] FWC 1004

[2023] FWC 1004

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Vanessa Walker
v

Workcon (Qld) Pty Ltd

(U2022/11082)

COMMISSIONER SIMPSON

BRISBANE, 28 APRIL 2023

Application for Unfair Dismissal Remedy – Applicant does not meet the minimum employment period – Application dismissed.

On 18 November 2022, Ms Vanessa Walker (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy against Workcon (Qld) Pty Ltd.

The matter was listed for a conciliation before a Commission Conciliator on 17 February 2023 but did not settle. The matter was then allocated to me, and I listed the matter for a Directions Hearing on 23 March 2023. The matter was listed for hearing on 27 April 2023 via Microsoft Teams Video.

Background

The Applicant began her employment as a casual employee on 19 December 2021 as a Traffic Controller. It is common ground that the Applicant remained a casual employee for the entire period of her employment with the Respondent.

The Applicant alleges that in August 2022, she began communicating with her employer regarding some ‘incidents’ whereby the Applicant alleges to have been sexually assaulted by other employees. The Respondent alleges that the Applicant was not dismissed and instead resigned by way of text messages received on 25 October 2022.

JURISDICTIONAL OBJECTION

In the Form F3 – Employer response to unfair dismissal application, the Respondent objected to the application on the basis that Ms Walker had not been dismissed in accordance with s. 386 of the Act. The Respondent did not raise an objection in relation to the issue of whether the Applicant satisfied the minimum employment period.

After all the material had been filed, the jurisdictional issue whether the Applicant could satisfy the minimum employment period became apparent. It is not in dispute that the Respondent is not a small business and thus the applicable minimum employment period, pursuant to s.383 of the Act, is 6 months.

Minimum Employment Period

The Act provides the following:

“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 to the person 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.”

383 Meaning of minimum employment period
The minimum employment period is:

(a)if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i)the time when the person is given notice of the dismissal;

(ii)immediately before the dismissal;…

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 Vanessa Walker v Workcon (Qld) Pty Ltd

Details

AGLC: Vanessa Walker v Workcon (Qld) Pty Ltd [2023] FWC 1004
Case: [2023] FWC 1004
Decision Date: 28 APRIL 2023

CaseChat Overview and Summary

Vanessa Walker, a former casual employee of Workcon (Qld) Pty Ltd, sought a remedy for unfair dismissal before the Fair Work Commission. Workcon contested the application, arguing that Ms Walker had not completed the requisite minimum employment period of six months, as required by the Fair Work Act 2009. The matter proceeded to a hearing before Commissioner Simpson, who considered whether Ms Walker's employment history met the criteria for protection from unfair dismissal.

The central legal issue was whether Ms Walker had satisfied the minimum employment period stipulated by the Act, which necessitates six months of continuous employment for non-small business employers. The Court examined whether Ms Walker's employment with Workcon was on a regular and systematic basis and if she had a reasonable expectation of continuing employment during the relevant period. This involved assessing the evidence regarding her work history, including her engagement with other entities like Moonyah.

Commissioner Simpson concluded that while Ms Walker was a regular casual employee from 13 June 2022 to 31 October 2022, she did not meet the minimum employment period requirement. The evidence showed that her employment between 19 December 2021 and 12 June 2022 did not meet the criteria for counting towards the minimum employment period. Therefore, Ms Walker had not completed the necessary six months of continuous service with Workcon, and her application for unfair dismissal was dismissed. The decision was grounded in the specific statutory requirements of the Fair Work Act, which necessitate a clear demonstration of the minimum employment period to protect against unfair dismissal.

Orders