Mercy Igot v Elanan Pty Ltd T/A LCK Pastry

[2015] FWC 3568

[2015] FWC 3568

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mercy Igot
v
Elanan Pty Ltd T/A LCK Pastry
(U2014/8143)

COMMISSIONER GREGORY MELBOURNE, 25 MAY 2015

Application for relief from unfair dismissal.

Introduction

[1] Ms Mercy Igot filed an unfair dismissal application under s.394 of the Fair Work Act 2009 (Cth) on 2 July 2014 claiming she had been unfairly dismissed by her employer, The Trustee for M & S Ferguson Trust T/A La Parisienne Croissant Kitchens on 24 June 2014.

[2] The Respondent filed a Form F3 – Employer Response to Unfair Dismissal Application on 23 July 2014. It indicated the correct legal name of the business was Elanan Pty Ltd T/A LCK Pastry. An order correcting the named Respondent has been issued in conjunction with this decision. It also indicated in its response Ms Igot resigned from her employment on 26 June 2014 and was not dismissed. It also raised an objection on the ground her period of employment did not meet the minimum employment period required by the Act.

[3] Directions were subsequently issued for the filing and service of submissions and evidence, however, the Applicant has not to date provided any relevant submissions and/or evidence, or attended the two scheduled hearings. The Commission has accordingly decided in this decision to determine the matter.

The Evidence and Submissions

[4] Directions for filing and service of evidence and submissions were issued on 29 July 2014. The Respondent provided a submission and further documentation in accordance with those directions. In summary, it submits the Applicant was employed on two separate occasions. The first period was from 23 July 2013 until 20 February 2014. It submits she resigned at this point and understood she intended to return to the Philippines. It also submits her entitlements were paid to her at this time and her employment file closed.

[5] It submits she was employed again on 16 April 2014, after returning to Australia and inquiring as to whether work was available. It submits she remained in employment until 20 June 2014, a period of employment of just under 10 weeks.

[6] As indicated, the Applicant did not comply with the directions for filing and service of evidence and submissions, and the hearing scheduled for 5 September 2014 was adjourned at the Applicant’s request. The Commission subsequently provided the Applicant with four weeks to provide reasons as to why the matter should proceed given that no evidence or submissions had been filed. The Applicant’s representative subsequently requested a further period of one month to provide a response. Further correspondence was forwarded to the Applicant on 6 November 2014 and the matter set down for hearing again on 28 November 2014. However, the Applicant again failed to attend. The Commission subsequently advised the parties the matter would be determined on the basis of the submissions and evidence received.

[7] The Commission subsequently received correspondence from the Applicant in December 2014 indicating she was still overseas. Some payslips covering periods of time in 2013 were also attached, however, the relevance of this documentation was not made clear.

Consideration

[8] The application in this matter was made in July last year. The Respondent has raised a jurisdictional objection in response, indicating the Applicant has not satisfied the minimum employment period requirement contained in s.383 of the Fair Work Act 2009. It has provided a written submission and other materials in support of this submission. They indicate that on the last occasion the Applicant was employed by the Respondent she was employed for a period of less than 10 weeks.

[9] The Applicant has been provided with various opportunities to provide submissions in response. She did not comply with the directions issued and scheduled hearings have been cancelled on two occasions because of her non-attendance. The Applicant did finally provide some written materials to the Commission in December 2014, however, they do not appear to be relevant to the matters at issue. The Applicant is also apparently still overseas and there is no indication at this stage if or when she is likely to return to Australia.

[10] I am satisfied, in conclusion, that the Applicant has been provided with a reasonable opportunity to pursue her application. I am also satisfied it is not appropriate for matters to remain open indefinitely. Based on the evidence and submissions provided in this matter I am satisfied she had not completed the minimum employment period on the last occasion she worked for the Respondent, having only been in employment for a period of 10 weeks. The application is accordingly dismissed.

COMMISSIONER

Final written submissions:

The Applicant did not file any submissions in this matter.

The Respondent filed written submissions on 13 August 2014.

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<Price code A, PR567740>