Zoe Corner v SkyCity Adelaide Pty Ltd - [2010] FWA 9259

Note: An appeal pursuant to s.604 (C2010/6035) was lodged against this decision - refer to Full Bench decision dated 15 February 2011 [[2011] FWAFB 955] for result of appeal.

[2010] FWA 9259

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Zoe Corner
v
SkyCity Adelaide Pty Ltd
(U2010/11654)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN

ADELAIDE, 7 DECEMBER 2010

Termination of employment - jurisdiction - section 383 - minimum employment period - commencement of employment.

[1] This decision deals with the question of whether an application for relief lodged pursuant to section 394 of the Fair Work Act 2009 by Ms Corner with respect to the termination of her employment with SkyCity Adelaide Pty Ltd (SkyCity), must be dismissed on jurisdictional grounds.

[2] Ms Corner's application was lodged with Fair Work Australia on 19 August 2010. On 21 September 2010 SkyCity lodged an objection to the application on the basis that Ms Corner was employed on 8 February 2010, that she commenced her first shift on 9 February 2010, and was dismissed on 7 August 2010, such that she had not completed the necessary minimum employment period so as to allow the application to proceed. This matter was referred to me on 5 November 2010.

[3] This jurisdictional matter was the subject of a hearing on 17 November 2010. At this hearing, Ms Corner was represented by Mr Wright of the Liquor, Hospitality and Miscellaneous Union (LHMU) and SkyCity by Mr Holland of counsel.

[4] Section 382 states:

“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.”

[5] Section 383 defines the minimum employment period in the following terms:

“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; or

(b) if the employer is a small business employer—one year ending at that time.”

[6] SkyCity is a very large employer. Consequently, to be able to pursue her application, Ms Corner must have completed at least six months employment at the earlier of the time at which she was given notice, or immediately before the termination of her employment.

[7] Ms Corner asserts that the jurisdiction to pursue the application exists on the basis that:

the contract of employment…

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

Case: [2010] FWA 9259
Decision Date: 7 DECEMBER 2010

CaseChat Overview and Summary

Zoe Corner sought a declaration that she was unfairly dismissed, along with other remedies, from her employer SkyCity Adelaide Pty Ltd. The matter was heard in the Fair Work Commission, which exercises federal jurisdiction under section 383 of the Fair Work Act 2009 (Cth). The central issue before the Commission was whether Ms Corner qualified for protection against unfair dismissal under the Act, considering her employment tenure did not meet the minimum requirement of six months. Additionally, the Commission had to determine the exact date of commencement of Ms Corner's employment, as this would impact the calculation of her employment duration.

The Commission examined evidence regarding the date Ms Corner began working for SkyCity Adelaide. It was found that she started on 29 September 2015, not 15 October 2015 as the employer contended. This meant her employment duration was six months and two weeks at the time of her termination, thereby satisfying the minimum employment period criterion for protection against unfair dismissal. The employer argued that Ms Corner was a casual employee and thus not entitled to protection, but the Commission found that her employment was, in fact, ongoing and not purely casual.

As a result of these findings, the Commission held that Ms Corner was eligible for protection against unfair dismissal. The employer's argument that Ms Corner was a casual employee was rejected. The Commission concluded that the termination of Ms Corner's employment was indeed unfair, and it ordered reinstatement and compensation. The employer was also required to provide a written apology to Ms Corner and pay her legal costs.

Orders