Applicant v Respondent
[2010] FWA 4289
•22 JUNE 2010
[2010] FWA 4289 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Applicant
v
Respondent
(U2009/14971)
DEPUTY PRESIDENT MCCARTHY | PERTH, 22 JUNE 2010 |
Termination of employment.
[1] The Applicant was employed by the Respondent in March 2007 as a draftsperson. On 15 December 2009 the Applicant’s employment was terminated.
[2] The Applicant asserts that her employment was terminated unfairly. The Respondent asserts that the Applicant’s employment was terminated on the grounds of a genuine redundancy. The Respondent, however, does not press jurisdictional grounds in objecting to the application.
[3] The Applicant resides in the Philippines and is not an Australian citizen. She was employed by the Respondent and was able to work in Australia under the terms and conditions of the appropriate visa.
[4] I conducted the proceedings for this matter on the papers and in conference with the Applicant participating by telephone from the Philippines.
[5] The Applicant in the conference proceedings agreed that her terms of engagement were for the period March 2007 to March 2010. She also agreed that on her termination she was paid out the balance of the term of her contract, although entitlement to an extra one or two days pay seems to be still in dispute.
[6] The Applicant asserts that whilst the work she was primarily engaged for was at an end, namely the Pluto Project, her employment should not have been terminated as there was still work for other projects that she was capable of performing. It is unclear what the Applicant was seeking with this application as she did not want reinstatement and she did not seek remuneration lost as a consequence of the termination. Eventually she explained that she was seeking $10,000 payment for her to return the Philippines following the loss of her employment. I note that payment for an airfare or other expenses for such a purpose did not form part of the Applicant’s contract of employment.
[7] The Respondent provided witness evidence in the form of affidavits from five persons. Those statements indicated clearly that at the time of the Applicant’s termination of employment that the work on which she had been engaged had, or was nearing completion. The consequence was that the contingent of five draftspersons was reduced to two. The statements also indicated that there was no other work in which the Applicant could appropriately be engaged.
[8] The Applicant could and did not intend to produce any evidence other than her own statements. Whilst the documentation she provided was voluminous most of it was not relevant to my considerations.
[9] At the conference I gave indications to the parties that I was inclined to find that the Applicant had no reasonable prospects of succeeding in her application and that it was vexatious, frivolous or lacking in substance. I gave the reasons why I was inclined to that view and provided them with an opportunity to provide me with further information. The Applicant provided me with further information.
[10] Although the Respondent did not rely on the jurisdictional ground that the termination of employment was a genuine redundancy it does appear to me that it is most likely that it was. It also appears to me that the terms of the Applicant's employment were fixed and due to expire in March 2010. The Respondent paid out the balance of the term of the employment. Under those circumstances even if the Applicant was successful in her application and given that she was not seeking reinstatement then there is little, if anything, that would be likely to be awarded to her in a matter of this nature by way of dismissal pay compensation.
[11] The evidence the Respondent provided was compelling. The five affidavits provided gave a clear state of the work outlook, the capacity of the Applicant to perform that work and the unavoidability of the decision to terminate the Applicant’s employment.
[12] I consider that the Applicant has no reasonable prospect of success and I also consider the application to be frivolous.
[13] The application is dismissed.
DEPUTY PRESIDENT
Appearances:
Ms E Lualhati on her own behalf.
Mr A Cameron on behalf of the Respondent.
Proceeding details:
Perth.
2010:
May, 25.
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