| [2021] FWC 976 [Note: a correction has been issued to this document] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Lambrini Niaros
v
Assembly Label
(U2021/882)
COMMISSIONER WILSON | MELBOURNE, 18 MARCH 2021 |
Application for an unfair dismissal remedy. Jurisdictional objections; date of dismissal required determination, and whether minimum employment period met. When dismissal took effect; consideration of continuous service. Whether JobKeeper payments affected employment and continuous service. Objections dismissed; application validly within time and applicant a person protected from unfair dismissal, having served the minimum employment period.
[1] This decision concerns an application under the Fair Work Act 2009 (FW Act) for unfair dismissal remedy made by Ms Lambrini Niaros (the Applicant) alleging unfair dismissal against Assembly Label (the Respondent).
[2] Ms Niaros commenced employment with Assembly Label on 8 June 2018. She was employed on a casual basis and worked predominately at the Respondent’s Armadale Store in Victoria. Ms Niaros worked her final shift with Assembly Label on 3 January 2021 and her application for unfair dismissal remedy was lodged in the Fair Work Commission (the Commission) on 4 February 2021.
[3] Assembly Label have objected to Ms Niaros’ application on two grounds; that Ms Niaros has not served the minimum employment period and that her application was made out of time.
[4] These matters were the subject of written submissions from each party, with a hearing also conducted on 26 February 2021. Ms Niaros represented herself at the hearing and gave evidence and made submissions on her own behalf, and Ms Annaliese Prigg, Assembly Label’s National Retail Manager provided evidence and submissions on behalf of the Respondent.
[5] For the reasons set out below, I have found Ms Niaros was dismissed on 30 January 2021 and that her application was therefore made within the time limits allowed for in the FW Act. I have also found that Ms Niaros has served the minimum employment period and that she is a person protected from unfair dismissal. As a consequence, Directions for the further programming of the matter will be issued shortly.
BACKGROUND
[6] The following matters of background inform my decision in relation to the above matters.
[7] Between the Applicant’s commencement as a casual employee with Assembly Label on 8 June 2018, and the cessation of her employment on 3 January 2021, there were seven distinct periods of employment and absence:
8 June 2018 to 14 July 2019 | First Period of Work |
15 July 2019 to 2 November 2019 | First Period of Absence |
3 November 2019 to 26 March 2020 | Second Period of Work |
27 March 2020 to 18 May 2020 | Second Period of Absence |
19 May 2020 to 10 July 2020 | Third Period of Work |
11 July 2020 to 26 October 2020 | Third Period of Absence |
27 October 2020 to 3 January 2021 | Fourth Period of Work |
[8] Ms Niaros gave evidence that monthly rosters were notified to staff two weeks in advance of the roster. 1 On 21 December 2020 she had been notified…
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- AGLC
- Lambrini Niaros v Assembly Label [2021] FWC 976
- Case
- [2021] FWC 976
- Decision Date
CaseChat Overview and Summary
The court examined the evidence provided by both parties and assessed the applicant's employment history, including the period of JobKeeper payments. The court determined that the dismissal was effective on a specific date and that the applicant's continuous service included the period during which JobKeeper payments were received. The court held that the application was within the jurisdictional time limits and that the applicant had indeed met the minimum employment period required to be protected from unfair dismissal. The objections raised by the employer were dismissed, and the court found the application to be valid.
Based on the findings, the court concluded that the applicant was entitled to pursue a remedy for unfair dismissal. The Fair Work Commission ordered that the matter proceed to a hearing to determine the merits of the unfair dismissal claim. Further, the court directed that the employer provide all necessary documents and evidence related to the applicant's employment and dismissal within the stipulated timeframe.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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