Diana Graziotto v Sids High Quality Smash Repairs Pty Ltd

[2016] FWC 2833

[2016] FWC 2833

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Diana Graziotto
v
Sids High Quality Smash Repairs Pty Ltd
(U2016/488)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 6 MAY 2016

Application for relief from unfair dismissal.

[1] This decision arises from a jurisdictional objection lodged by Sids High Quality Smash Repairs Pty Ltd (the respondent) to an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act).

[2] The respondent contended that Ms Graziotto had not been employed for the minimum employment period required by the provisions of the Act for an employee of a small business employer i.e. 12 months.

[3] The relationship between Ms Graziotto and the respondent ended on 28 January 2016. At the date of termination of employment Ms Graziotto had been employed by the respondent for six months and 13 days.

[4] When determining this application I had before me the Application for Unfair Dismissal lodged by Ms Graziotto and the Employer Response filed by the respondent.

[5] I wrote to Ms Graziotto on 31 March 2016 by express post and by electronic mail outlining the matters I was required to consider by the Act and asked her to provide a statement addressing these matters within 14 days.

[6] A copy of my correspondence is set out below.

“The respondent submits that it is a small business employer with less than 15 employees. If this is the case an application for an unfair dismissal remedy cannot succeed against it unless the period of employment is greater than 12 months.

Can you please provide a statement regarding the period of your employment with the respondent and confirm whether it is, to your knowledge, an employer with less than 15 employees.

Unless you request a hearing in person, by telephone or by video conference, I will decide if the jurisdictional objection lodged bythe respondent is successful and, as a consequence, whether or not your application will proceed to arbitration, on the basis of the application filed by yourself, any response filed by the respondent, and your statement.

Please provide your statement within 14 days of the date of this letter. If no statement is received I will consider your application on the material before me without further notice to you.”

[7] Ms Graziotto did not respond.

[8] I issued an Order dismissing Ms Graziotto’s application on 20 April 2016.

SENIOR DEPUTY PRESIDENT

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