Corey Kirk v MAS Security (Australia) Pty Ltd

[2021] FWC 5115

[2021] FWC 5115

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Corey Kirk
v
MAS Security (Australia) Pty Ltd
(C2021/3008)

COMMISSIONER BISSETT MELBOURNE, 26 AUGUST 2021

Application to deal with contraventions involving dismissal.

[1] On 27 May 2021 Mr Corey Kirk (Applicant) made an application pursuant to s.365 of the Fair Work Act 2009 (FW Act) alleging that his employment had been terminated in breach of the general protections provisions of the FW Act. The Applicant said that his employment was terminated on 17 May 2021 because he made a complaint or inquiry in relation to his employment. The Applicant claims to have been employed at La Aroma Italiano restaurant.

[2] MAS Security (Australia) Pty Ltd (Respondent) failed to complete the Employer response for to the application although Mr Mohamed Elmahrakawy, Director of La Aroma Italiano and the Respondent did attend the conciliation before a Commission staff member where he indicated that the Applicant ‘had been on trial for a limited period of time.’ This was recorded as indicative of a jurisdictional objection to the application.

[3] The file was subsequently referred to me for arbitration to determine if the Applicant had been an employee of the Respondent such that he was then dismissed from his employment.

[4] On 12 July 2021 I issued directions and listed the matter for hearing by video on 16 August 2021.

[5] The Applicant complied with his directions. The Respondent failed to file it submissions and evidence by 9 August 2021. Mr Elmahrakawy was emailed and advised that the Respondent had failed to comply with the directions issued but that the Respondent now had until 12 August 2021 to file its materials.

[6] For a number of reasons including his health Mr Elmahrakawy did not file any evidence and did not attend the hearing. After hearing from the Applicant and, initially, reserving my decision, on the receipt of further information from Mr Elmahrakawy I determined to re-open the application.

[7] Mr Elmahrakawy subsequently filed brief submissions and evidence of two employees of the Respondent. A further hearing was held on 26 August 2021.

[8] At that second hearing Mr Elmahrakawy made clear that he agreed that the Applicant had been employed by the Respondent and that the Applicant had been dismissed but that this had occurred during the Applicant’s probationary period. The Respondent therefore does not press a jurisdictional objection that the Applicant was not an employee. The confusion, in this case, arose from the use of the word ‘trial’ to describe the Applicant’s employment.

[9] The application in relation to the dismissal of the Applicant has been subject to conciliation. The Applicant has indicated that he does not consider that any further conciliation of the dispute will assist in resolving the matter in dispute. I am therefore satisfied that all reasonable steps to resolve the dispute have been or are likely to be unsuccessful.

[10] A certificate to this effect will be issued pursuant to s.386(a) of the FW Act in conjunction with this decision.

COMMISSIONER

Appearances:

A Jewell for the Applicant

M. Elmahrakawy for the Respondent

Hearing details:

16 August 2021. Melbourne, by video.

26 August 2021. Melbourne, by video.

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