Amy Barden v Danny's Bar and Bistro Pty Ltd T/A Danny Murphy's Bar & Grill

[2015] FWC 8784

[2015] FWC 8784

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Amy Barden
v
Danny’s Bar and Bistro Pty Ltd T/A Danny Murphy’s Bar & Grill
(U2015/9611)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 21 DECEMBER 2015

Application for relief from unfair dismissal.

[1] Ms Amy Barden alleged that the termination of her employment by Danny’s Bar and Bistro Pty Ltd was unfair.

[2] Danny’s Bar objected to Ms Barden’s application, alleging that it was not lodged within 21 days from when the dismissal took effect.

[3] Ms Barden said that her dismissal took effect on 4 July 2015 while in Danny’s Bar Form F3 Employer Response, it said she was dismissed on 2 July 2015. The resolution of this issue is critical because if Ms Barden was dismissed on 2 July 2015, her application lodged on 24 July 2015 was not lodged within the 21 days provided by the Fair Work Act 2009 (the Act). If her dismissal took effect on 4 July 2015, her application was lodged within time.

[4] At the hearing, Ms Barden did not appear. Ms Melanie Murphy, the owner of Danny’s Bar, appeared.

What date did Ms Barden’s dismissal take effect?

[5] In Ms Barden’s application, she said that on 2 July 2015, Mr Martin Murphy advised her that she should start looking for another job due to a personality clash. She did not consider that she had been dismissed at this time. Ms Murphy agreed that that conversation took place.

[6] On 4 July 2015, Ms Barden attended work. She said she spoke to Ms Murphy about what Mr Murphy had said to her on 2 July 2015 and was advised not to worry. Ms Barden then commenced work, however during her shift, Mr Murphy told her to get out. Ms Barden took these comments to mean she was dismissed.

[7] At the hearing, Ms Murphy agreed that the dismissal was effective on 4 July 2015.

[8] For the reasons set out above, I find that the application was made within time and no extension of time is necessary. The matter will now be listed for arbitration and directions will be issued for parties to file material.

DEPUTY PRESIDENT

Appearances:

No appearance for the Applicant

M Murphy for the Respondent

Hearing details:

2015.

Telephone hearing:

December 17.

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