Vincent Li v Food Health Australia Pty Ltd T/A Manly Eat Well Chinese Restaurant

[2020] FWC 260

[2020] FWC 260

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vincent Li
v
Food Health Australia Pty Ltd T/A Manly Eat Well Chinese Restaurant
(U2019/12656)

COMMISSIONER MCKENNA SYDNEY, 17 JANUARY 2020

Application for an unfair dismissal remedy.

[1] In the Form F2 application form for this matter, Vincent Li (“the applicant”) indicated that his employment with Food Health Australia Pty Ltd T/A Manly Eat Well Chinese Restaurant (“the respondent”) commenced on 9 September 2019 and ceased on 25 October 2019. In consequence of the dates indicated in the application form (and subsequently also in the Form F3 employer’s response form) Commission correspondence was sent to the applicant concerning the minimum employment period.

[2] The applicant made a written submission, supported by employment records (time and wage-type records). The matter was subsequently reallocated to me to determine whether the applicant completed the minimum employment period. The applicant submitted in part:

“I have received my roster from the accountant showing my working hours that has [sic] been on a consistent and permanent basis on days from Tuesday to Sunday every single week.

Also the fact i [sic] would like to note is that when the new business owner has come in we were told that everything would be the same. We were not given any formal or written notice as to the new business not rolling over our previous months/years of work, hence i [sic] should be eligible for unfair dismissal as i [sic] have worked for over 12 months on a permanent casual basis.”

[3] Following a listing by telephone on 10 January 2020, which was attended by the applicant and, for the respondent, Ms L Yang, I caused correspondence to be sent to the parties with certain attachments and also drawing attention to provisions of the Fair Work Act 2009, specifically s.383 and s.384 of the Act. The correspondence read, in part:

“Unless the respondent wishes to dispute Mr Li’s submission and/or supporting annexures, considered in the context of the provisions of the Act, the Commissioner proposes to determine that Mr Li met the minimum employment period. The parties will have the opportunity to raise any relevant matter in the hearing on 17 January 2020.”

[4] In proceedings today, Ms Yang, who had interpreter assistance, did not relevantly dispute any part of the applicant’s submission or the supporting employment records relied on by him concerning the minimum employment period; and nor was it suggested, for example, that the respondent informed the applicant in writing before the new employment started with the respondent that a period of service with the old employer would not be recognised.

[5] The respondent did not itself raise a minimum employment period objection to the application, but the respondent has raised in its Form F3 employer’s response a specific objection that the dismissal was a case of genuine redundancy. Having regard to what was before me by way of the applicant’s uncontested submissions and supporting employment records concerning the minimum employment period, I determine that the applicant met the minimum employment period. With this discrete preliminary matter determined, which was the subject of the reallocation to me, the matter will now be subject to further programming.

COMMISSIONER

Appearances:

V Li, on his own behalf.

L Yang, director, for Food Health Australia Pty Ltd T/A Manly Eat Well Chinese Restaurant.

Hearing details:

2020.

Sydney (by telephone)

January 17.

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