Jonathan Anderson v Delta Force Properties Pty Limited
[2009] FWA 1880
•22 DECEMBER 2009
[2009] FWA 1880 |
|
DECISION |
Workplace Relations Act 1996
s.643 - Application for relief re (Harsh, Unjust or Unreasonable) termination of employment
v
Delta Force Properties Pty Limited
(U2009/10089)
SENIOR DEPUTY PRESIDENT HARRISON | SYDNEY, 22 DECEMBER 2009 |
Termination of employment – employer’s motion to dismiss – fewer than 100 employees.
[1] An application has been lodged by Mr Anderson under s.643(1) of the Workplace Relations Act 1996 (the WR Act) alleging that the termination of his employment by Delta Force Properties Pty Limited (the employer) was harsh, unjust and unreasonable.
[2] The employer has filed a motion to dismiss the s.643(1) application on the ground that there is no jurisdiction for me to entertain it. It submits that, at the relevant time, it employed 100 employees or fewer.
[3] Sections 643(10) and (11) of the WR Act are relevant to the employer’s motion to dismiss. They are in the following terms:
“(10) An application under subsection (1) must not be made on the ground referred to in paragraph (1)(a), or on grounds that include that ground, if, at the relevant time, the employer employed 100 employees or fewer, including:
(a) the employee whose employment was terminated; and
(b) any casual employee who had been engaged by the employer on a regular and systematic basis for at least 12 months;
but not including any other casual employee.
(11) For the purposes of calculating the number of employees employed by an employer as mentioned in subsection (10), related bodies corporate (within the meaning of section 50 of the Corporations Act 2001) are taken to be one entity.”
[4] Conferences have been held with the parties and written submissions filed by each of them. In support of the employer’s motion to dismiss a statutory declaration has been filed annexing extracts from ASIC records and details of the names of employees on the employer’s payroll at the time the applicant’s employment was terminated. The applicant asserted there were related companies but was unable to identify any of them or file any evidence which puts in issue any of the material contained in the statutory declaration filed in support of the employer’s submission.
[5] Based on the employer’s evidence I find there is no relevant related body corporate and that the employer had approximately 17 employees at the relevant time. Accordingly, I find that the employer employed 100 employees or fewer at the time of termination of Mr Anderson’s employment. The motion to dismiss is granted. I am required by s.645(5) of the WR Act to make an order dismissing the s.643 application. An order to that effect will issue at the same time as this decision.
SENIOR DEPUTY PRESIDENT
Appearances:
J Anderson on his own behalf.
L. Bubenicek for Delta Force Properties Pty Ltd.
Hearing details:
2009.
Sydney:
September 9;
October 26.
Printed by authority of the Commonwealth Government Printer
<Price code A, PR992133>
0
0
0