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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lambrini Niaros v Assembly Label

Details

AGLC: Lambrini Niaros v Assembly Label [2021] FWC 976
Case: [2021] FWC 976
Decision Date: 18 MARCH 2021

CaseChat Overview and Summary

The applicant, Lambrini Niaros, brought an application for unfair dismissal remedy against her employer, Assembly Label. The dispute centred on the circumstances of her dismissal and whether the employer acted unfairly. The case was heard in the Fair Work Commission. The central legal issues revolved around the date of dismissal, the continuous service period, and whether the applicant met the minimum employment period required to be protected from unfair dismissal. Additionally, the court considered the impact of JobKeeper payments on the applicant's employment status and continuous service.

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