Agnes Ball v Amaroo Nursing Home

[2011] FWA 5543

[2011] FWA 5543

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Agnes Ball
v
Amaroo Nursing Home
(U2011/7578)

COMMISSIONER STANTON NEWCASTLE, 18 AUGUST 2011

Application for unfair dismissal remedy - jurisdictional objections - respondent not the employer of the applicant - application lodged out of time - application dismissed.

[1] On 4 May 2011, Fair Work Australia received an application filed by Mrs Agnes Ball for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The applicant stated her dismissal took effect on 20 March 2011. At that time, the applicant was employed as a casual general service officer.

[2] On 30 May 2011, the respondent lodged a jurisdictional objection to the application (Form F4) in the following terms:

(i) The respondent was not the employer of the applicant. The applicant was employed by an agency, J & G Employment Services Pty Limited; and

(ii) the application was lodged “significantly” out of time.

[3] A conciliation conference scheduled before Conciliator Mullins on 3 June 2011 was vacated on the grounds that the respondent was not prepared to conciliate the jurisdictional objections. The matter was subsequently referred for Conference/Hearing to deal with these objections before a Member of Fair Work Australia on 23 August 2011.

[4] On 29 July 2011, Fair Work Australia received an unsigned Notice of Discontinuance (Form F50) from the applicant. Fair Work Australia staff contacted the applicant who advised she was experiencing difficulty in prosecuting her application and, in particular, in complying with Directions requiring the filing of submissions, witness statements and other documentary material that she proposed to rely upon. During this discussion the applicant resolved to attend the hearing scheduled on 23 August 2011.

[5] The matter was allocated to the Tribunal as presently constituted on 10 August 2011.

[6] On 15 August 2011, the respondent’s representative, the Aged and Community Services Association of NSW & ACT Incorporated, advised Fair Work Australia that the organisation had received a Notice of Discontinuance (Form F50) signed, but not dated, by the applicant. The organisation sought confirmation from Fair Work Australia that the application had been discontinued. However as the applicant had not filed a Notice of Discontinuance with Fair Work Australia the application was listed for Conference/Hearing today, 18 August 2011, to determine the intentions of the applicant concerning her application.

[7] During the course of proceedings this morning, the Tribunal sought to explain the jurisdictional objections raised by the respondent, particularly the objection that the respondent was not the applicant’s employer. Attention was drawn to materials filed by the respondent concerning certain pay and superannuation payments made to and on behalf of the applicant by J & G Employment Services Pty Limited. In response, the applicant confirmed her application should have been made against J & G Employment Services Pty Limited as that entity, rather then the respondent in these proceedings, was her employer. It is also clear on the material filed by the respondent that Amaroo Nursing Home was not the applicant’s employer at the date of dismissal.

[8] As a consequence, I dismiss the application on the grounds that is has no reasonable prospect of success. Given that finding, it follows that it is unnecessary to determine the extension of time application.

COMMISSIONER

Appearances:

Applicant appeared unrepresented

Mr S Kayal of Aged and Community Services Association of NSW & ACT Incorporated, appeared for the respondent

Hearing details:

2011

Newcastle

18 August

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