Aree Julsuntorn v Inventis Technology Pty Ltd/ Pne Pty Ltd
[2009] FWA 1724
•21 DECEMBER 2009
[2009] FWA 1724 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
v
Inventis Technology Pty Ltd/ PNE Pty Ltd
(U2009/12187)
COMMISSIONER LARKIN | SYDNEY, 21 DECEMBER 2009 |
Termination of employment – no termination at initiative of employer.
[1] On 16 September 2009 Aree Julsuntorn (the applicant) made application to Fair Work Australia (FWA) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) against Inventis Technology Pty Ltd (the respondent). On Form F2, Application for Unfair Dismissal Remedy, Ms Julsuntorn stated that she was employed from 2004 to 2009 and that she was notified of the dismissal, and the dismissal took effect, on 21 August 2009. The reasons for the dismissal were stated as: “We were put on one week on and one week off. They said the workload has decreased but they said that we hope get better soon”. She stated that the dismissal was unfair because:
“I was put on part time, one week on and one week off, for about 2-3 month. After that they told me I was on call and I went in a few times. They never told me I was dismissed, until I called on Friday, 21st August 2009. Where I was told to find another job.
I feel the dismissal was unfair because I was put on hold for many weeks and I called many times and was told to wait, as the work would increase soon. They always during phone calls said to wait and they will call. But on the last call on 21st August 2009, they just said ‘go find another job’.”
[2] On 1 October 2009, the respondent filed Form F3, Employer’s Response to Application for Unfair Dismissal. In their response the respondent stated:
“1. The applicant was employed as a casual on 9 June 2005. Employment has continued on this basis and is still current. Due to a downturn in production, all casual employees’ hours have been reduced as we do not have sufficient work.
2. We are hoping that production will increase and we have been keeping our casuals informed. All of our casuals are still employed and we call them in when we have sufficient work.
3. The applicant was not told to ‘go find another job’.
4. The applicant remains a current employee. Employment has not been terminated.”
[3] The matter was listed for the purpose of conciliation on 6 October 2009 but did not settle.
[4] On 13 November 2009 the respondent filed an objection to the application. The respondent stated that FWA did not have jurisdiction as there had been no termination of the applicant’s employment. The response stated, inter alia:
“3. That the Applicant is still an active casual employee on the Payroll of the Respondent. Please refer to Annexure 1 - Statutory Declaration by Clare Fortuin, Payroll and Human Resources (HR) Officer.
4. That the Applicant has been requested to attend duties on a number of occasions as per the requirements of the Respondent's work but the Applicant has refused to attend. Please refer to Annexure 2 - Statutory Declaration by Rasmi Fraihat, Production Manager.
5. That the Applicant had tried to influence other casual employees of the Respondent and coerced these casual employees to make an application against the Respondent for Unfair Dismissal. All these casual employees have refused to be part of the application as they considered they have not been dismissed by the Respondent. Please refer to Annexure 3 (i) and 3(ii) - Statutory Declaration by Employees who were approached by the Applicant.
6. That the Applicant has been a casual process worker for the Respondent and due to the economic downturn, the Respondent is unable to provide work for all casuals and a rotational or as and when required basis system has been adopted for all casual workers. Please refer to Annexure 4 - Statutory Declaration by Robyn Himmelberg, General Manager.”
[5] The respondent provided five statutory declarations, referred to above, in support of the objection.
[6] The matter was listed for jurisdictional conference / hearing before FWA for 27 November 2009. Directions were issued for the filing and serving of material. The applicant was directed to file and serve material by 12noon Friday 20 November 2009.
[7] On 23 November the applicant was contacted by telephone by my associate in relation to her failure to file material in accordance with the directions. Following that conversation the following letter was issued:
“Dear Ms Julsuntorn
RE: U2009/12187 Julsuntorn v Inventis Technology Pty Ltd
I refer to our conversation this afternoon where you raised that you had not received a copy of the notice of listing setting down your matter for hearing / conference in relation to jurisdictional issues which was express posted to your home address and emailed to the address provided on your application form.
This notice of listing contained directions that each party file in FWA, and serve on the other party, submissions and witness statements in relation to the jurisdictional issues. You were due to file and serve your material by 12noon Friday 20 November 2009. I attach to this letter a copy of that notice of listing. Your attendance is required at this listing. As mentioned in our telephone discussion, the listing and the direction that you file and serve requires your immediate attention. You should file this material with FWA immediately and also send a copy to the respondent company.
Please do not hesitate to contact me if you have any questions.
My details are as follows:
.....
I have also attached to this letter the material filed by the respondent company in accordance with the direction to file and serve.
Regards
Kate Turner
Associate to Commissioner Larkin.”
[8] On 25 November 2009 the applicant had not filed material in relation to the proceedings. My associate made contact with the applicant by phone and the applicant confirmed that the letter of 23 November 2009 had been received on the fax number provided. The applicant was reminded that the direction to file and serve was overdue and required immediate action.
[9] At the hearing on 27 November 2009 Ms Sharma, Company Secretary, appeared for the respondent. There was no appearance from the applicant. My associate made contact with the applicant in relation to her non-appearance and the applicant advised that she would not be attending. The applicant’s reason given for non-attendance was that she presumed the listing would be conducted by telephone.
[10] On 27 November 2009 I heard the respondent’s application to dismiss the matter on the grounds previously stated in this decision.
[11] At the conclusion of the hearing, I forwarded correspondence to the applicant requesting that she provide a written explanation as to her non-compliance with the directions issued on 29 October 2009 and her non-attendance at the jurisdictional conference / hearing listed for 27 November 2009. The applicant was also requested to provide her response to the jurisdictional objection lodged by the respondent. The response in writing was required by 18 December 2009.
[12] As at the date of issuing this decision the applicant has not filed any material.
[13] Section 587(3)(a) of the Act states:
“587 Dismissing applications
…
(3) FWA may dismiss application on its own or on application
FWA may dismiss an application:
(a) on its own initiative; or
(b) on application”
[14] As is evidenced by the above chronology, the applicant has not attempted to pursue her application. The applicant did not comply with the directions issued on 29 October 2009 despite the numerous requests from my chambers to do so. The applicant did not appear at the hearing on 27 November 2009 and has not provided any response to the letter issued to her on 27 November 2009.
[15] In the circumstances, the applicant’s application for an unfair dismissal remedy is dismissed on the initiative of FWA under s.587(3).
[16] As outlined previously in this decision, the respondent has raised a number of jurisdictional issues in relation to the application. Based on my findings above, I do not consider it necessary to determine those issues. However, it would appear on the material that, prima facie, there was no dismissal of the applicant.
[17] An order will issue separately to this decision.
COMMISSIONER
Appearances:
Ms R Sharma, on behalf of the respondent.
Hearing details:
Sydney.
2009:
November, 27.
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