Daniel Lewis v Refrigeration Man T/A G & K Refrigeration and Air Conditioning

[2013] FWC 6379

[2013] FWC 6379

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Lewis
v
Refrigeration Man T/A G & K Refrigeration and Air Conditioning
(U2013/8724)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 3 SEPTEMBER 2013

Application for relief from unfair dismissal.

[1] Mr Lewis claims unfair dismissal from the employment of G and K Refrigeration and Air-Conditioning. He lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) on 18 April 2013.

[2] Mr Lewis represented himself. Ms Stuckey-Clarke from the Australian Federation of Employers and Industry, a registered industry association, represented the respondent.

[3] The respondent objected to Mr Lewis’s application proceeding to arbitration. It submitted that the respondent is a small business employer, and that Mr Lewis did not have the one year of continuous service necessary to amount to the minimum employment period to found jurisdiction.

[4] I heard the jurisdictional objection of the respondent on 26 July 2013. Mr Selvon, the principal of the respondent, provided a witness statement 1, gave evidence and was cross examined by Mr Lewis. Ms Stuckey-Clarke provided submissions2.

[5] I am satisfied and find that Mr Lewis performed work in 2011 although the spread of hours and exact dates are not able to be ascertained. The respondent alleged that the work performed by Mr Lewis in 2011 was performed as a contractor and not as an employee. I am not able to be satisfied that the arrangement was one of contractor. Unfortunately, Mr Selvon did not keep any records.

[6] Mr Lewis also worked at least eight months and one week from 2 January 2012 until the termination of his employment in 2013.

[7] Because of the absence of reliable records I am not able to be satisfied as to the veracity of the respondent's jurisdictional objection. It must therefore be dismissed.

[8] Despite this, I have serious doubts about the merits of Mr Lewis’s substantive application. Mr Lewis had not been to work since 28 December 2012 when his employment was terminated in March 2013. I suggest Mr Lewis obtain advice before further conducting his application for unfair dismissal.

[9] The jurisdictional objection of the respondent is dismissed.

SENIOR DEPUTY PRESIDENT

 1  Exhibit Refrigeration Man 1

 2   Exhibit Refrigeration Man 2

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