1
Fair Work Act 2009
s.604—Appeal of decision
Stephen Winbank
v
Laundy Hotels Pty Ltd
(C2022/2968)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT MASSON
COMMISSIONER BISSETT
SYDNEY, 12 JULY 2022
Appeal against decision [2022] FWC 1158 of Deputy President Cross at Sydney on 13 May
2022 in matter number C2022/234.
Introduction
[1] Mr Stephen Winbank has lodged an appeal, for which permission to appeal is required,
against a decision of Deputy President Cross issued on 13 May 20221 to dismiss Mr Winbank’s
application made under s 365 of the Fair Work Act 2009 (Cth) (FW Act). In his application, Mr
Winbank alleged that he had been dismissed by Laundy Hotels Pty Ltd (Laundy) in
contravention of Pt 3-1 of the FW Act and sought that the Commission deal with the dispute
under s 368. Laundy contended, in response to the application, that it had not dismissed Mr
Winbank and that the Commission consequently had no jurisdiction in respect of the
application. The Deputy President accepted Laundy’s contention in this respect and dismissed
the application on that basis. Mr Winbank contends in his appeal that the Deputy President
erred in doing so.
[2] In Coles Supply Chain Pty Ltd v Milford2 (Milford) a Full Court of the Federal Court
determined that it is an objective condition of a valid application under s 365 that the applicant
has been dismissed, and any dispute concerning this must be resolved by the Commission in
the first instance in order to determine whether it has authority to deal with the matter under s
368. The term “dismissed” in s 365 is defined in s 386(1) to mean (subject to certain exceptions
in s 386(2) which are not presently relevant) that a person’s employment with the employer has
been terminated on the employer’s initiative or the person has resigned from their employment
but was forced to do so because of the employer’s conduct.
1 [2022] FWC 1158
2 [2020] FCAFC 152, 279 FCR 591, 300 IR 146
[2022] FWCFB 128
DECISION
AUSTRALIA FairWork Commission
Factual background
[3] The evidence at first instance concerning the relevant circumstances of Mr Winbank’s
employment with Laundy was somewhat sketchy. Nobody gave sworn evidence. There were a
number of documents attached to Mr Winbank’s application, and to Laundy’s response to the
application. Mr Winbank filed a number of documents which combined his account of factual
matters and his submissions, and attached further various documents including extracts from
text message exchanges. Mr Winbank was not cross-examined. Laundy filed two statements of
evidence made by Ms Selina Birchall, Head of Human Resources for Laundy, and Mr Shane
Richardson, who did not identify his position with Laundy in his statement but who we infer
from other material is a senior manager. Neither was cross-examined. Additional facts were
asserted from the bar table at the hearing before the Deputy President.
[4] Mr Winbank has attached to his appeal submissions a number of documents or extracts
from documents, some of which were before the Deputy President but some of which appear
to be new. We will admit the new material as evidence in the appeal because, at least to some
extent, it supplements the limited and unsatisfactory evidence adduced at first instance.
[5] From this material, we reconstruct the chronology of events as follows. By way of a
letter dated 4 December 2021, Laundy offered Mr Winbank employment in the position of
Assistant Manager for the Bayview Hotel, which is located at Woy Woy in the NSW Central
Coast region and is close to Mr Winbank’s residence. The letter enclosed an employment
contract (contract) which Mr Winbank was requested to sign. The contract provides that Mr
Winbank is engaged as a full-time employee in the position of Assistant Venue Manager,
commencing on 6 December 2021, subject to a probationary period of six months. Clause 6 of
the contract provides that “Your place of work will be specified in Item 7 of Schedule 1 attached
to this Agreement or such other places as the Company may reasonably require from time to
time”, and item 7 of Schedule 1 refers to “Bayview Hotel or other locations as required”. The
contract otherwise provides for an annual salary, full-time hours of work and paid leave
entitlements, and permits termination of employment on notice or summarily. The pay period
is specified as Monday - Sunday, with payment to occur on the following Wednesday. Clause
17 allows Laundy to suspend Mr Winbank from duties with pay in order for Laundy to
investigate any allegations of misconduct or impropriety, but the contract does not provide for
suspension or stand down without pay except where Mr Winbank loses a relevant licence
required for the performance of work. The contract was signed electronically by Ms Birchall
on behalf of Laundy on 4 December 2021, and by Mr Winbank on 12 December 2021.
[6] Mr Winbank commenced working at the Bayview Hotel on Monday, 6 December 2021.
He reported to the Hotel Manager, Mr Chris Mills. Mr Winbank was paid pursuant to the
contract for the first two pay periods. The last pay he received was on Wednesday 22 December
2021, which included payment for the pay week 13-19 December 2021 and backpay for the pay
week 6-12 December 2021.
[7] On 22 December 2021, Mr Mills informed Mr Winbank and other employees by text
message that another employee at the Bayview Hotel had tested positive for COVID-19, and
told them to undertake a test. It appears from subsequent text messages that Mr Winbank
undertook a rapid antigen test, which gave a negative result, but Mr Mills then told him to
“…make sure u [sic] go to clinic.” Mr Winbank subsequently had a PCR test. A disagreement
then arose between him and Mr Mills that afternoon concerning Mr Winbank’s public health
obligations while he awaited the results of his PCR test. Mr Winbank texted Mr Mills to the
effect that, when he undertook the PCR test, he was advised by NSW Health that he was a
“close contact” and was not allowed to go back to work until he returned a negative PCR test
result. Mr Mills disagreed, stating that Mr Winbank was a casual contact, not a close contact,
and he was safe to work unless he had symptoms or felt unwell. Mr Mills directed him to start
his shift at 5.00 pm. Mr Winbank responded by text as follows:
[2022] FWCFB 128
3
“I’ve just called them again, spoke to 3 different health workers and they said I can’t
attend work until my test comes back negative. If I go to work I’ll get fined and the
venue will be fined, they said casual and close contacts need to isolate until a negative
test. So I’m not sitting here trying to be difficult they are telling me not to go back to
work until my test comes back negative.”
[8] Mr Winbank apparently did not attend for work as directed by Mr Mills. There was a
further exchange in which Mr Winbank reported that he had itchy eyes and a dry throat but said
he was not sure if it was “anything related” and that he was “more than happy to come to work
but they are telling me not to as it’s against the health act”. Mr Mills responded by telling Mr
Winbank to stay at home if he had symptoms and he would “send the correct information now”.
[9] Ms Birchall said in her witness statement that Mr Mills contacted her on 22 December
2021 “after receiving a text message from Steve Winbank that he was not returning to work”.
She gave the following account of what then occurred:
“I called Chris and I asked Chris why he is not returning and he said he thinks he’s pulling
the piss. He said on the day the first staff started positive with COVID at Bayview,
Steve went to get tested and hasn’t returned to work. I asked him to contact Steve to
find out what is happening. Chris then expressed that Steve came to work scruffy/untidy
like he'd been out the night before and was late or just didn't turn up for the Managers
meeting.
I said given how understaffed we are perhaps he should call him so that we can assess
what to do next. I suggested that we continue to work with him to get us through this
period of time. Chris was very frustrated with Steve and the situation. He didn’t want to
have Steve back however I expressed that post this conversation I will chat to Danielle,
and she could then speak to Arthur about his frustrations. I asked him to wait until I got
back to him and to call me once he heard back from Steve re his return to work.
Called Danielle to share this conversation and she said she would speak with Arthur on
this so he could chat to Chris.” (underlining added)
[10] We infer from other material that “Arthur” referred to above is Mr Arthur Laundy, who
is described in a submission made by Laundy as the owner of the Bayview Hotel, and
“Danielle” is Danielle Laundy/Richardson, who is described as being in senior management.
[11] Things between Mr Mills and Mr Winbank took a more acrimonious turn on the morning
of 24 December 2021 when the following exchange of text messages occurred between Mr
Mills and Mr Winbank:
Mills: Steve is there a reason you have missed two of your management shifts.
Chris.
Winbank: I’ve been in isolation mate as the health workers told me to isolate, and
your aware of that.
Mills: Have you received the email I sent you Tuesday. I had twelve staff in
casual contact with [name redacted] like yourself. They all followed
health advise and all are classed as casual contact like yourself who are
all currently at work.
Winbank: I’ve been advised I’m a close contact after you told me to go to the clinic
and get a test, don’t make me out to be a shit human, I’m not the idiot
that comes to work after knowing to be around people with covid, I was
advised by nsw health.
If they went to the clinic and got a test they would have been told to
isolate until a negative test.
Mills: Delete my number.
Winbank: Keep going buddy.
[12] Later that day, Mr Winbank reported to Ms Birchall by text message what had occurred
between himself and Mr Mills. In the material before us, the text message is reproduced in two
parts in separate documents and it is difficult to tell whether we have the complete message,
but it at least included the following:
“Hi Selina today I guess I was sacked by Chris at the Bayview, on Sunday a staff member
came to work after knowing she’d been around covid positive people and she tested
positive so after working a whole shift with her she’s put everyone at risk, so Chris told
me to go to the clinic and they advised me I’m a close contact and under no
circumstances attend work I’m…away I assume he probably had a couple of beers by
then and then I got a msg saying your shift is at 5, so today I get a message saying Steve
you’ve missed two management shifts what is the reason, I reminded him I’m isolating
because I’ve been ordered to, the then said delete my number. In all honesty the bloke
is not running the Bayview well, I’m not sure if your aware but I feel like he is hiding
things from the laundry group. So I guess if there’s another pub I could work at great!
If not I’ll guess I’ll look for work.” (underlining added)
[13] Mr Winbank also said in a separate message that he could send Ms Birchall all the text
message conversations he had had with Mr Mills. Ms Birchall did not provide any response to
these messages, but said in her witness statement that she passed them on to Danielle. Ms
Birchall also said that she received a text message from Mr Mills that same day (24 December
2021) asking her to call him, but she did not say whether she did so or, if she did, what was said
during the call.
[14] Mr Winbank’s PCR test result was negative, but it is not clear when he was provided
with this result. We infer it was before 29 December 2021 because there is a record of Mr
Winbank taking another PCR test on that day.
[15] It is apparent that there was a telephone conversation between Mr Richardson and Mr
Winbank on 28 December 2021, but there are contradictory accounts of this conversation. Mr
Richardson recounted the conversation as follows in his statement:
“I … enquired as to what the situation was and what had occurred. Mr. Winbank
proceeded to explain that he had determined he was a COVID19 close contact and had
let Mr. Mills know that he was isolating so would not be working but there seemed to
be quite some confusion on whether he was meant to or not. Mr Winbank then began to
state the Mr. Mills was not fit for the role and he believed he was not a good GM, it was
obvious that he and Mr. Mills did not have a good relationship.
[2022] FWCFB 128
5
I then questioned Mr. Winbank on a number of issues I had been made aware of, notably,
being late for shifts, not turning up for a scheduled management meeting and generally
not communicating with the venue when these situations had occurred. Mr. Winbank
said he had personal issues that had caused these problems but did not provide an
explanation for not communicating.
Mr. Winbank then further stated that he did not believe Mr. Mills was capable of running
the venue and gave examples of what he did with a couple of situations, one I
remembered was how he thinks security should be run, however eventually stating that
he did not want to work with Mr. Mills. We talked about how he is an employee at
Bayview and that we are a large group with many venues and he was going to think
about what he wanted to do and he would give me a call when he wanted to discuss
what he wanted to do post his isolation.
I never heard from Mr Winbank again and at no time during my conversation with Mr
Winbank did I advise him that he had been dismissed.”
[16] Mr Winbank’s account (contained in a submission sent to the Commission on his
iPhone) was as follows:
“…I did reach out through message and email to Shane and Selina in which I ask Selina
is there another venue I can work at, she told me to contact Shane and our brief chat
between me and Shane he wondered why I borrowed $200 it was because I’d not been
paid from the company in over 17 days and I wanted to get a rat test they the venue
could not provide me with a rat test when I collected the $200 they had run out. and he
also said Chris had said I was always late so I could tell there had been a chat between
Chris mills in which he had told Shane who is the operations manager at laundy hotel I
was always late and it became clear he was trying to make it look like I was at fault and
his adverse reaction was justified I then told Shane on the 28th December via email in
which he requested me to email him what was wrong with the Bayview hotel in which
evidence will be provided there was no job offer or any talk of me on a roster, he has
not contacted me since, Selina also an operations manager has not contacted me
since…”
[17] Mr Winbank filed his Form F8 application pursuant to s 365 of the FW Act on 29
December 2021. It does not appear to have been served on Laundy until 18 January 2022. There
is no evidence of any further contact between anyone from Laundy and Mr Winbank in this
period. On 24 January 2022, Laundy filed its Form F8A response to Mr Winbank’s application.
In its response, Laundy contended:
“1. The Applicant's employment was not terminated , he has not received a letter of
termination or a separation certificate.
2. The Applicant was advised by head of HR (Selina Birchall) that his employment
was not terminated and that we would look for alternate employment for him
within the Laundy Hotel Group.
3. The Applicant was advised by Senior Management (Danielle Richardson and
Shane Richardson) that his employment was not terminated and that he could
work elsewhere within the Group. The Applicant is still registered on Deputy
(workplace program) as an employed staff member. See Annexure ‘A’.
4. The Applicant brought this application a day after he was advised that we would
look into alternative employment.
5. The Applicant can begin employment immediately at the Twin Willows Hotel
at Bass Hill as the Applicant advised he would prefer to work in Sydney.”
[18] At around the end of January 2022, Laundy paid out to Mr Winbank his accrued
entitlements.
[19] Finally, Laundy put into evidence an email which Mr Mills sent to Mr Jarrod Kennedy,
who represented Laundy at the hearing before the Deputy President, on 14 April 2022. The
email stated:
“Steve Winbank 3 week review
Steve was late for his shifts on several occasions Steve attire was untidy shirt not ironed
pants not ironed not once but every shift Steve came to start of shift with blood on his
pants from the nights previous shift
Also Jarrod the managers have tried calling Steve as he has a full set of master keys to
the Bayview, I need those keys back if you could arrange this I would appreciate it, I
would also sleep better.”
The decision
[20] In his decision, the Deputy President referred to the adverse action alleged in Mr
Winbank’s application3 and then gave a recitation of the facts, albeit less complete than the
account we have given above.4 He found that, on or about 24 December 2021, Mr Winbank had
text messaged Ms Birchall “regarding his experience with Chris Mills and requesting
consideration to move to another Hotel”.5 The Deputy President also referred to the telephone
conversation between Mr Winbank and Mr Richardson on 28 December 2021, and reproduced
Mr Richardson’s version of this conversation,6 but made no reference to Mr Winbank’s version
of it. The Deputy President then made the following findings and conclusions:
“[18] As noted at paragraphs [6] and [7] above, the adverse action alleged by the
Applicant involved the Respondent attempting to unlawfully coerce and bully the
Applicant into attending the workplace in contravention of its own publicised standards
concerning COVID-19 restrictions. That allegation falls well short of dismissal at the
initiative of the Respondent.
[19] Insofar as the Applicant’s assertion that Mr Mills’ text message to the Applicant on
24 December 2021, stating “Delete my number” constituted dismissal, I consider that
too falls short of constituting dismissal at the initiative of the Respondent. Considered
in context, it was the final text message in a long chain of messages where Mr Mills and
the Applicant pressed their different understandings of isolation rules. While that text
3 [2022] FWC 1158 at [6]-[7]
4 Ibid at [8]-[15]
5 Ibid at [11]
6 Ibid at [12]
[2022] FWCFB 128
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message expressed Mr Mills’ frustration, it could not amount to communication of
termination of employment.
[20] Any doubt the Applicant held regarding his employment status should have been
dispelled by his conversations with Mr Richardson and Ms Birchall prior to filing the
Application. Indeed, in communications with Ms Birchall on or about 24 December
2021, the Applicant requested consideration of a move to another venue.
. . .
[21] I find that the employment relationship between the Applicant and the Respondent
ended due to the Applicant’s non-attendance at work, particularly after the filing of the
Application. I therefore find that the Applicant’s employment was not terminated on the
initiative of the Respondent, and the Applicant was not dismissed pursuant to s 386(1)(a)
of the Act. The Application must therefore be dismissed.”
Appeal submissions
[21] Mr Winbank was self-represented in his appeal, and his notice of appeal and appeal
submissions (unsurprisingly) do not identify or articulate his grounds of appeal with precision
or clarity. Nonetheless, it is reasonably apparent that he contends that the evidence does not
support the Deputy President’s conclusion that he was not dismissed. Mr Winbank submitted
that the text messages which passed between himself and Mr Mills on 22 and 24 December
2021, culminating in the “Delete my number” text, the internal criticism of his performance by
Mr Mills, and the failure of anyone at Laundy on or after 24 December 2021 to address Mr
Mills’ conduct or to assign him work at an alternative location to the Bayview Hotel
demonstrate that he was dismissed on 24 December 2021.
[22] Laundy submitted that permission to appeal should not be granted because the meaning
of “dismissal” and the application of s 365 is well founded at law, the appeal does not raise any
issue of general importance or application with implications beyond this case, there is no
diversity of decisions on this topic, the decision under appeal does not manifest injustice nor is
it counter-intuitive, and there is no disharmony in the legal principles applied compared with
similar decisions. It further submitted that permission should not be granted because Mr
Winbank’s submissions merely seek to re-agitate the merits of the matter rather than identify
an appealable error.
[23] In relation to Mr Winbank’s grounds of appeal and appeal submissions, Laundy
generally submitted that they seek to re-agitate the merits of the matter and do not identify any
appealable error, and that it was reasonably open for the Deputy President to reach the
conclusion in paragraphs [18]-[20] of the decision. Insofar as Mr Winbank challenged the
Deputy President’s reliance on Mr Richardson’s statement concerning the telephone
conversation of 28 December 2021 in paragraph [12] of the decision, Laundy submitted that:
the Deputy President dealt with the issue of whether there was alternative employment
available for Mr Winbank at the Twin Willows Hotel at Bass Hill during the hearing;
it was open for Mr Winbank to seek to cross-examine Mr Richardson at the hearing and
he chose not to;
no appealable error has been identified;
Mr Richardson’s evidence demonstrates that he informed Mr Winbank that there was
potentially an alternative position at Laundy’s other venues;
Laundy understood that, as at 28 December 2021, Mr Winbank was in isolation; and
Laundy was unable to advise Mr Winbank of the alternative position at the Twin
Willows Hotel because the filing of the application on 29 December 2021 gave Mr
Richardson no time to get back to him.
[24] Insofar as Laundy failed to tender any witness statement from Mr Mills, it was submitted
that:
this was addressed by the Deputy President at the hearing when he considered whether
a Jones v Dunkel inference should be drawn with respect to the 14 April 2022 email;
it was not unreasonable for the Deputy President to fail to draw the inference in his
decision; and
Mr Mills’ evidence was not material to the finding that no dismissal had occurred,
because that finding was largely the result of the evidence of Mr Richardson and Ms
Birchall about the steps taken to “find a solution to the friction” between Mr Mills and
Mr Winbank, and the Deputy President also relied on Mr Winbank’s own conduct in
requesting to move to another venue after the “Delete my number” text.
Consideration
[25] The question of whether Mr Winbank was dismissed is, as explained in Milford, an
antecedent jurisdictional one. As such, it is a question which “allowed for only one correct
answer, which was either yes or no”.7 Accordingly, subject to the prior grant of permission to
appeal, if we consider that the answer given to the question by the Deputy President was
incorrect, our duty on appeal is to substitute what we consider to be the correct answer. Further,
taking into account that there was no sworn witness evidence received by the Deputy President
and the matter proceeded on the basis of unsworn and untested statements of fact,
contemporaneous records of communication and other documents, and bar table assertions, we
do not consider that the Deputy President enjoyed any advantage over us in terms of
determining the ultimate inference to be drawn from the evidentiary material before him.
[26] For the reasons which follow, we consider that the Deputy President’s conclusion was
incorrect and that Mr Winbank was dismissed by Laundy on or about 24 December 2021.
[27] For the purpose of the first limb of the definition of “dismissed” in s 386(1)(a), a
person’s employment has been terminated at the employer’s initiative where the action of the
employer is the principal contributing factor which leads to the termination of the employment
relationship such that, had the employer not taken the action it did, the employee would have
remained in the employment relationship.8 It is clear in our view that Mr Mills’ “Delete my
number” text of 24 December 2021, the failure of any more senior manager to either
countermand that text or to assign Mr Winbank to a reasonable alternative work location in an
expeditious way, and the cessation of the payment of salary to Mr Winbank, constituted the
actions which caused the termination of the employment relationship.
7 Public Service Association of South Australia Incorporated v Industrial Relations Commission of South Australia [2012]
HCA 25, 249 CLR 398 at [31] per French CJ
8 Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 625, 62 IR 200 at 205-6
[2022] FWCFB 128
9
[28] Under clause 6 of the contract, Mr Winbank was required to work at the Bayview Hotel
unless subject to a reasonable requirement to work at another location. He was also entitled to
the payment of a full-time salary whilst his employment remained on foot. He performed his
work, and was paid, in accordance with the contract until 22 December 2021 when, as earlier
recounted, he formed the view based on advice from NSW Health that he was not lawfully able
to attend his workplace until he received the result of his PCR test. He communicated that to
Mr Mills, his designated manager and thus the relevant representative of Laundy in respect of
his employment, but emphasised that he was otherwise ready, willing and able to discharge his
employment duties. This led to a disagreement with Mr Mills about Mr Winbank’s public health
obligations as a COVID-19 “contact” and culminated, unjustifiably, in the “Delete my number”
text message.
[29] This text message, on the evidence, can only be reasonably understood as intended to
end Mr Winbank’s employment at the Bayview Hotel forthwith. The text itself conveyed in
direct terms that Mr Mills was breaking off communications with Mr Winbank (and in fact Mr
Mills never communicated with him again) and, indirectly, it conveyed that there could be no
workable employment for Mr Winbank at the Bayview Hotel in the future. That Mr Mills
intended by this message to end Mr Winbank’s employment at the Bayview Hotel is confirmed
by Ms Birchall’s statement that Mr Mills told her on 22 December 2021 that he did not want
Mr Winbank back, and by Mr Mills’ email of 14 April 2022 in which he identified that he had
held concerns about Mr Winbank’s work performance at the time this occurred. The failure by
Laundy to provide any witness statement from Mr Mills to rebut Mr Winbank’s contention that
the “Delete my number” text constituted the termination of his employment at the Bayview
Hotel gives rise to a Jones v Dunkel inference that such a witness statement would not have
assisted Laundy’s case that there was no dismissal.
[30] That Mr Mills had terminated Mr Winbank’s employment at the Bayview Hotel on 24
December 2021 was understood by all involved. Mr Winbank informed Ms Birchall by text
message what had occurred on the very same day, and made it clear that he considered that he
had been dismissed. Ms Birchall did not even respond to this. There was never any
communication from her, Mr Richardson or anyone else from Laundy to the effect that Mr
Winbank’s understanding of the position was incorrect and confirming that his employment at
the Bayview Hotel was continuing. Nor was there any evidence that Ms Birchall, Mr
Richardson or anyone else had countermanded Mr Mills’ actions on 24 December 2021,
notwithstanding that at least Mr Richardson and perhaps Ms Birchall as well had spoken to Mr
Mills about what had occurred. Notwithstanding Laundy’s contention that the employment of
Mr Winbank remained ongoing, it has never been suggested at any time since 24 December
2021 that it remains open for Mr Winbank to return to his job at the Bayview Hotel.
[31] The employment might have continued if, consistent with the contract, Laundy had
expeditiously communicated a reasonable requirement for Mr Winbank to work at an
alternative location. This did not occur at any time before Mr Winbank filed his application. It
was left to Mr Winbank to raise this as a possibility (in his text to Ms Birchall of 24 December
2021), but he was never actually assigned any further work. The Deputy President relied upon
the version of the conversation between Mr Winbank and Mr Richardson on 28 December 2021
given in the latter’s witness statement, without taking into account the rather different version
given by Mr Winbank, but in any event on any view Laundy did not, consistent with the
contract, make a reasonable request that Mr Winbank work at a location rather than the Bayview
Hotel.
[32] Finally, and perhaps of most significance, Laundy simply stopped paying Mr Winbank
after 24 December 2021. If the employment remained on foot after that date then, under the
contract, Laundy was obliged to pay Mr Winbank his weekly salary for the week 20-26
December 2021 on 29 December 2021. However, it did not do so then nor subsequently. Laundy
never advanced any explanation for this inconsistency with its case that Mr Winbank had not
been dismissed.
[33] The proposition in Laundy’s Form F8 reply to the application of 24 January 2022 that
Mr Winbank could “begin employment immediately at the Twin Willows Hotel at Bass Hill”
cannot reasonably be considered as constituting any indication that the employment remained
on foot as at the time the reply was filed. By this time, Laundy had failed to pay Mr Winbank
in accordance with the contract on 29 December 2021 and 5, 12 and 19 January 2022. It had
not given any indication since 24 December 2021 that Mr Winbank could return to the Bayview
Hotel, nor had it assigned him to any other work location. Laundy had not even attempted to
communicate with Mr Winbank since 28 December 2021, almost four weeks before. It could
not seriously be thought that Mr Winbank could, under the contract, reasonably be directed to
work at the Twin Willows Hotel at Bass Hill since it is approximately 85-90 kilometres by road
from the Bayview Hotel and from Mr Winbank’s residence. This proposition must be regarded
as entirely self-serving and ingenuine.
[34] Finally, we note that a number of contentions in Laundy’s reply to the application were
not supported by any evidence. In particular, neither Ms Birchall, Danielle Laundy/Richardson
nor Mr Richardson advised Mr Winbank in terms that his employment was not terminated, and
the statements of Ms Birchall and Mr Richardson contained no evidence to this effect.
Accordingly, it is not clear on what basis these propositions were included in Laundy’s
response.
[35] Because the decision under appeal concerns a jurisdictional question and has had the
effect of depriving Mr Winbank of the opportunity to prosecute his application, we consider
that it is appropriate to grant permission to appeal. For the reasons above, we uphold the appeal.
Conclusion
[36] We order as follows:
(1) Permission to appeal is granted.
(2) The appeal is upheld.
(3) The decision of Deputy President Cross of 13 May 2022 ([2022] FWC 1158) is
quashed.
(4) Matter C2022/234 is remitted to Commissioner McKenna to deal with under
s 368 of the FW Act.
VICE PRESIDENT
OF THE FAIR WORK COMMISSION THE
[2022] FWCFB 128
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Appearances:
S Winbank, the appellant, in person.
S Wood, solicitor, for the respondent.
Hearing details:
2022.
Sydney and Melbourne by video link:
7 July.
Printed by authority of the Commonwealth Government Printer
PR743692
