Hodgson v Sumo Salad Corporate Store Pty Ltd ATF Sumo Salad Bay City Unit Trust
[2009] FWA 129
•24 AUGUST 2009
[2009] FWA 129 |
|
DECISION |
Fair Work Act 2009
s.643—Termination of employment
v
Sumo Salad Corporate Store Pty Ltd ATF Sumo Salad Bay City Unit Trust
(U2009/10333)
COMMISSIONER WHELAN | MELBOURNE, 24 AUGUST 2009 |
Jurisdiction—less than 100 employees.
[1] An application under section 643(1)(a) was lodged by Mr Hodgson on 15 July 2009 in relation to the termination of his employment with Sumo Salad. Mr Hodgson indicated that the last day he worked for the respondent was 22 June 2009 and that the termination of his employment took effect on 25 June 2009.
[2] On 24 July 2009 the respondent filed a Form R30 (Notice of Motion to Dismiss the Application as Frivolous, Vexatious or Lacking in Substance) together with a document titled, “Summary of facts in support”. The motion to dismiss was made on the ground that the respondent employed less than 100 employees at the time of the applicant’s termination. The respondent also indicated that it objected to the Commission conciliating the matter before the motion to dismiss was dealt with.
[3] On 28 July 2009, Fair Work Australia wrote to Mr Hodgson notifying him of the respondent’s motion to dismiss and offering him the opportunity to challenge that material. The conciliation conference previously scheduled for 3 August 2009 was cancelled and parties advised they would be notified if further proceedings were required.
[4] The correspondence also indicated that in the event the respondent’s material was challenged evidence would need to be produced and the matter listed for hearing. In the event the respondent’s material was not challenged the application would be dismissed on the basis that section 643(10) of the Workplace Relations Act prevented FWA from dealing with the application.
[5] There was no written response to that correspondence or contact from the applicant advising that it was his intention to challenge the respondent’s material.
[6] On the basis of the material before the Commission, I am satisfied that at the time of the applicant’s dismissal the respondent employed less than 100 employees and that therefore the application must be dismissed.
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