[2011] FWAFB 955

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Fair Work Act 2009
ss.604 and 400 - Appeal of decisions

Ms Zoe Corner
SkyCity Adelaide Pty Ltd



Appeal against decision [2010] FWA 9259 of SDP O'Callaghan at Adelaide on 07 December 2010 in matter number U2010/11654.

[1] This is an appeal, for which permission is required, against Senior Deputy President O’Callaghan’s Decision on 7 December 2010  1 that Ms Zoe Corner had not completed the minimum employment period at the time of her dismissal by SkyCity Adelaide Pty Ltd (SkyCity) and accordingly that no unfair dismissal remedy was available to her.

[2] This being a jurisdictional question, the issue for the Full Bench was whether the Decision was correct or not.

[3] Before the Senior Deputy President, both the commencement and ending dates of Ms Corner’s employment were in contention. He concluded on the evidence before him that “termination of employment occurred on 7 August 2010 when SkyCity advised Ms Corner, in the presence of her union representative, that she was dismissed with one week’s pay in lieu of notice.” 2 He found the commencement date of the employment to be “on 9 February 2010 when she commenced work” 3 and, accordingly, Ms Corner had not served the 6 month minimum employment period in s.383 of the Fair Work Act 2009 (the Act) which is required for protection from unfair dismissal in s.382.

[4] For the sake of completeness, we set out the relevant statutory provisions from Division 2 of Part 3-2 of the Act.

[5] Additionally, s.22 is relevant to the meaning of service and continuous service; s.380 deals with employee and employer; and s.386 with the meaning of dismissed, including employment terminated on the employer’s initiative.

[6] Having considered all the material before us in this case, the Full Bench is not persuaded that SDP O’Callaghan was in error in his conclusions that Ms Corner had not served the minimum period of employment and that as a consequence no unfair dismissal remedy was available.

[7] The Senior Deputy President set out the background and circumstances in his Decision and we need not repeat that here. In our view, the period of employment commenced when Ms Corner first attended for work on 9 February 2010 and thereby accepted SkyCity’s offer of employment. We can see no evidence before the Senior Deputy President to establish any earlier date for Ms Corner’s acceptance of SkyCity’s written offer of employment. Nor was Mr Bourne, for Ms Corner, able to point to any. He conceded, we think correctly, that there was a gap in the evidence on this point. 4 Ms Corner did not contact SkyCity to accept the offer and she gave evidence that SkyCity had not contacted her prior to her attending for work on 9 February to follow up on its offer of employment.5

[8] In the absence of evidence establishing an earlier acceptance of SkyCity’s offer, we agree with Senior Deputy President O’Callaghan that the commencement of the period of employment was 9 February 2010 when Ms Corner attended for work.

[9] As to the date of dismissal, Mr Bourne conceded that there was not much doubt that the employer dismissed Ms Corner on 7 August 2010. 6 However, he referred to s.117 to argue that termination of employment could not occur before written notice was given and that that occurred after 7 August.

[10] We do not agree. The words of s.383 contemplate that dismissal may be earlier than the issuing of a written notice of termination of employment. That was the case here. SkyCity dismissed Ms Corner at a meeting on 7 August 2010, ending the period of employment.

[11] In our view, the period of employment was from 9 February 2010 to 7 August 2010, meaning that Ms Corner did not complete the minimum period of 6 months employment as defined by s.383 of the Act.

[12] Since in our view there is no error in the Senior Deputy President’s findings of jurisdictional fact, we do not consider that it is in the public interest to grant permission to appeal. Accordingly, we are required by s.400 of the Act to refuse permission.

[13] Permission to appeal is refused and the matter dismissed.



T Bourne, solicitor, for Ms Zoe Corner

R Manuel, of Counsel, for SkyCity Adelaide Pty Ltd

Hearing details:

February 10

 1   [2010] FWA 9259

 2   Ibid, para.22

 3   Ibid, para.39

 4   Transcript of 10 February 2011, PN.45

 5   Transcript of 17 November 2010, PN779-782

 6   Transcript of 10 February 2011, PN37, 277

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