Isatu Sesay v Lifestyle Solution Australia Limited T/A Lifestyle solution Disability Group

[2016] FWC 9175

[2016] FWC 9175

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Isatu Sesay
v
Lifestyle Solution Australia Limited T/A Lifestyle solution Disability Group
(U2016/10126)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 21 DECEMBER 2016

Application for relief from unfair dismissal.

[1] I issued an Order dismissing the application of Miss Isatu Sesay pursuant to s.394 of the Fair Work Act 2009 (the Act) on 23 November 2016. Miss Sesay has asked for my reasons for that decision. I now provide them.

[2] Miss Sesay lodged her application on 10 August 2016. From the details provided by her in her application Miss Sesay’s period of employment was uncertain.

[3] On 16 August 2016 I forwarded a letter to Miss Sesay seeking details in relation to her period of employment. That correspondence is extracted below:

“Dear Ms Sesay,

Re: U2016/10126 - Sesay v Lifestyle Australia Solution Limited T/A Lifestyle Solution Disability Group

An application for an unfair dismissal remedy cannot succeed unless the period of employment is greater than 6 months.

Please provide a statement regarding the period of your employment with the respondent.

On the basis of the application filed by yourself, any response filed by the respondent and your statement, I will decide if your application can proceed to arbitration.

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.
Yours faithfully,”

[4] Further subsequent correspondence was forwarded to Miss Sesay seeking to confirm her period of employment. The issue was not able to be resolved in correspondence.

[5] On 16 September 2016 I forwarded the following correspondence the applicant.

“Dear Ms Sesay,

For a person to be able to lodge an application for an unfair dismissal remedy pursuant to the Fair Work Act 2009 (the Act) that person must be employed for the minimum employment period prescribed by the Act. For any employer that period is six months.

You appear on your application to been employed for less than six months (18 January 2016 to 3 August 2016). In this circumstance your application cannot proceed.

If you disagree with my assessment of your period of employment please provide a submission in opposition. If I do not receive a submission within seven days at the date of this email correspondence I will dismiss your application without further notice to you on the papers already before me.”

[6] On 7 October 2016 a Notice of Listing for Hearing was forwarded to Miss Sesay for 28 October 2016.

[7] On 18 October 2016 Miss Sesay requested an adjournment due to her absence overseas. That request was refused on 20 October 2016.

[8] On 25 October 2016 Miss Sesay renewed her application for adjournment. That request was refused on 27 October 2016.

[9] On 28 October 2016 the jurisdictional objection of the respondent was listed for hearing. The respondent attended from Melbourne and gave evidence.

[10] On 9 November 2016 a copy of the transcript of proceedings before me on 28 October 2016 was forwarded to Miss Sesay for her consideration.

[11] I informed Miss Sesay that if she wished to respond to the evidence and submissions of the respondent made on that occasion she could do so within seven days. I advised her that if no submissions from her were received I would dismiss her application without further notice to her.
[12] No submissions were received. No request for an extension of time to provide them was received.

[13] I waited for Miss Sesay’s submissions until 23 November 2016. On the material before me I was satisfied that Miss Sesay was not employed for the minimum employment period required by the Act. On that date I dismissed Miss Sesay’s application.

SENIOR DEPUTY PRESIDENT

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