Kristina Mayor v The Greater Discount Chemist

[2011] FWA 8535

[2011] FWA 8535

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kristina Mayor
v
The Greater Discount Chemist
(U2011/12196)

COMMISSIONER ROE MELBOURNE, 8 DECEMBER 2011

Termination of employment – non-attendance of applicant - application dismissed.

[1] The matter arises from an application filed on 29 September 2011 under s.394 of the Fair Work Act 2009 (the Act) by Ms Kristina Mayor (the Applicant) for relief in respect to the termination of his employment from The Greater Discount Chemist (the Respondent). The Respondent operates from Hampshire Road, Sunshine, Victoria.

[2] The Applicant was dismissed by text message on 16 September 2011 due to alleged poor attendance and inadequate notice of inability to attend for rostered shifts. The Application was made within time.

[3] The Applicant says that she had been employed as a regular and systematic casual for five and a half years. There was a change of ownership at the pharmacy in April 2010. The Respondent denies that the Applicant was employed on a regular and systematic basis. The Respondent says that the Applicant’s shifts were irregular and that the Applicant had not had the minimum employment period required under the Act for unfair dismissal protection due to her work being not regular and systematic.

[4] The Respondent raised its jurisdictional objection on 20 and 24 October 2011. The matter was then listed for hearing on 2 December 2011 and Directions were issued for the Respondent to file its material by 8 November 2011 and the Applicant was to file her material by 22 November 2011. On 8 November 2011 the Respondent provided a statement from the retail manager Deanne Tran and information concerning hours worked during the period July to September 2011. The Applicant did not comply with the directions.

[5] Neither the Applicant nor the Respondent attended the proceedings on 2 December 2011. Attempts were made to contact the Applicant without success. My Associate then wrote to the Applicant by email on 2 December 2011 asking her to respond by 7 December 2011 “if there is any reason why the matter should not now be dismissed.” No response was received by 7 December 2011.

[6] The Applicant has not produced any evidence to challenge the submission of the Respondent that the Applicant did not have the minimum employment period required by ss 383 and 384 of the Act because she was a casual employee and was not employed on a regular and systematic basis. The Applicant has failed to prosecute her Application despite adequate opportunity to do so.

[7] In all of the circumstances I consider it appropriate to dismiss the Application for want of prosecution in accordance with s.587(1) of the Act. An order to this effect will be issued.

COMMISSIONER

Appearances:

No appearance for the Applicant or the Respondent.

Hearing details:

2011
Melbourne,
December 2.

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