Jodie McLennan v Northvic Parcels Pty Ltd

[2019] FWC 6020

[2019] FWC 6020

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jodie McLennan
v
Northvic Parcels Pty Ltd
(U2019/7186)

COMMISSIONER BISSETT MELBOURNE, 30 AUGUST 2019

Application for an unfair dismissal remedy – dismissal under s.587 at the Commission’s initiative.

[1] On 1 July 2019 Ms Jodie McLennan (Applicant) made an application to the Fair Work Commission (Commission) for remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the FW Act).

[2] On 19 July 2019 the Respondent filed its Form F3 – Employer response to unfair dismissal application containing a jurisdictional objection on the basis that the Respondent is a small business employer and the employer complied with the Small Business Fair Dismissal Code. It said that the Applicant was “[a] casual employee who worked on an irregular basis with no set hours.”. The Respondent further stated that the Applicant has not worked for the company since 26 March 2019.

[3] The matter proceeded to conciliation on 1 August 2019 but did not resolve.

[4] A Notice of Listing was sent to the parties on 12 August 2019 scheduling the matter for a Jurisdiction (Minimum Employment Period – Non regular and systematic casual employee) Conference/Hearing on 20 and 23 September 2019. Directions were also issued, requiring the Respondent to file material in support of its jurisdictional objection by 22 August 2019 and the Applicant to file material responding to the Respondent’s jurisdictional by 2 September 2019.

[5] The Respondent filed its material on 20 August 2019 in compliance with the Directions. The Applicant is due to file her material next Monday.

[6] On 14 August 2019 the Respondent filed a Form F1 Application seeking to have the Applicant’s matter dismissed on the basis that the application has been made frivolously and “the case has no basis, fact or law of unlawful dismissal, and is without unreasonable cause”.

[7] The Respondent says that the Applicant had no guaranteed hours of work, worked irregular and non-systematic hours, did not get paid sick or annual leave and that the Respondent can terminate the Applicant’s employment without notice as it has not entered into a registered agreement, award or employment contract.

[8] At this point in time I consider the Respondent’s application to dismiss has been made prematurely as the Applicant has not had an opportunity to respond to the jurisdictional objection made by the Respondent. Accordingly, the Respondent’s application is dismissed.

[9] The matter will proceed to Jurisdiction (Minimum Employment Period – Non regular and systematic casual employee) Conference/Hearing on 20 and 23 September 2019.

COMMISSIONER

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