Gina Resul v Fantastic Lights

[2014] FWC 8018

[2014] FWC 8018

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gina Resul
v
Fantastic Lights
(U2014/3897)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 12 NOVEMBER 2014

Application for relief from unfair dismissal.

[1] On 8 October 2014, I issued a decision 1 refusing an application by Fantastic Lights to dismiss Ms Gina Resul’s application for an unfair dismissal remedy on the grounds that she had not complied with the directions of the Commission.

[2] In that decision, I provided Ms Resul with an additional month to file material in opposition to Fantastic Lights’ objection to her unfair dismissal application, namely that she resigned her employment and was not dismissed. I further advised that the matter would be listed for 11 November 2014 and at that hearing Fantastic Lights’ objection would be heard and determined.

[3] Ms Resul did not file any material with the Commission.

[4] Ms Resul did not appear at the hearing and did not advise the Commission prior to the hearing that she would not attend the hearing.

[5] At the hearing I gave permission to Mr William Parsons, a solicitor for Fantastic Lights, to appear as I considered it would enable the matter to be dealt with more efficiently.

[6] As Ms Resul was on notice that the matter would proceed and no application for an adjournment was made, I decided to hear and determine Fantastic Lights’ application. Ms Resul had been given sufficient opportunity to put her case to the Commission but she did not take advantage of that opportunity.

[7] At the conclusion of the hearing, I advised the parties that I would dismiss Ms Resul’s application and that I would publish my reasons. These are my reasons.

[8] Ms Dorothy Crisford, Fantastic Lights’ owner, had prepared a statement and she adopted that statement on oath. 2 I am satisfied that Ms Resul had been served with that statement.

[9] It was Ms Crisford’s evidence that on 24 December 2013 Ms Resul resigned her employment by advising her that she would cease work at the beginning of January after New Year’s Eve. Ms Crisford gave evidence that on 25 December 2013 she typed up a letter confirming what Ms Resul had told her. She had planned to give the letter to Ms Resul at work that day but because of the inclement weather, work on Christmas Day was cancelled.

[10] Ms Resul worked on 28 December 20143 but Ms Crisford did not give her the letter. On that day Ms Resul gave Ms Crisford an undated list of her work related injuries.

[11] On 29 December 2013, Ms Crisford delivered a letter to Ms Resul’s address along with her earlier letter. In the letter of 29 December 2013, Ms Crisford advised that because of Ms Resul’s injuries, that before she could return to work, Fantastic Lights required a medical certificate that she was fit to undertake her duties. Ms Crisford advised that she would pay her for the Sunday night.

[12] That afternoon Ms Resul sent Ms Crisford a text message in which she disputed that she had resigned her employment and claimed she had been fired because she had told Ms Crisford that she was making a workers’ compensation claim.

[13] Ms Crisford’s evidence, given on oath, was not challenged. While Ms Resul in her application denied that she had resigned her employment, she did not attend the hearing to give that evidence. I therefore accept Ms Crisford’s evidence.

[14] Fantastic Lights filed evidence from three other witnesses. Two of the witnesses were unable to attend the hearing and I have not had regard to their evidence as it was not sworn evidence.

[15] Another witness, who has subsequently died, had earlier filed a statement that Ms Crisford had told her on 24 December 2013 that Ms Resul had resigned. I do not need to determine whether to admit that statement.

[16] On the evidence before the Commission, I find that Ms Resul resigned her employment on 24 December 2013. Her employment ended in early January 2014 when her resignation took effect. As Ms Resul was not dismissed, her unfair dismissal application is dismissed.

DEPUTY PRESIDENT

Appearances:

No appearance by the applicant.

W. Parsons for the respondent.

Hearing details:

2014.

Melbourne and Sydney (video hearing):

November 11.

<Price code A, PR557637>

 1   [2014] FWC 6216

 2   Exhibit R1

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