Michael Tissong v Hatrick Engineering Pty Ltd

[2013] FWC 7918

[2013] FWC 7918

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Tissong
v
Hatrick Engineering Pty Ltd
(U2012/13279)

DEPUTY PRESIDENT MCCARTHY PERTH, 9 OCTOBER 2013

Application for unfair dismissal remedy - Jurisdictional objection.

[1] Mr Michael Tissong (the Applicant) lodged an application for unfair dismissal remedy on 14 September 2012. Hatrick Engineering Pty Ltd (the Respondent) lodged an employer’s response asserting that the employer was a small business employer and that the Applicant had been employed for less than 12 months. A small business fair dismissal code checklist was also provided making the same statement.

[2] I conducted a conference on 31 January 2013 where the Applicant contested the number of employees that were employed at the time of the termination. He did not contest that he had been employed for less than 12 months.

[3] The employer later provided payroll evidence of the number of employees employed immediately prior to the Applicant's dismissal. The Applicant had been advised at the conference if he wished to contest that information he should inform my office accordingly.

[4] Apparently the information was not provided to the Applicant. As there was no further communication from him. I convened a further conference on 8 August 2013. The Applicant maintained his view that the employer employed more than 15 employees. I indicated to the Respondent that they would need to provide me with a statutory declaration and any other supporting documentation regarding the contention of the number of employees. I also indicated that the Applicant was to provide me with documentation or any other written material or grounds in support of his contention that there were 15 or more employees.

[5] Directions were issued to that effect on 8 August 2013 with the employer required to respond by 14 August 2013 and the Applicant by 21 August 2013. The Respondent provided the statutory declaration in accordance with those directions. Nothing had been received from the Applicant he was therefore contacted on 2 September 2013. He was advised that if he did not provide a response by 6 September 2013 the FWC will assume that he did not intend to proceed with the application or dispute the number of employees that were employed at the time of his dismissal. This time was later extended until 20 September 2013. There has been nothing received from the Applicant to date in accordance with the directions that were issued.

[6] I find that the Applicant was employed for less than 12 months and that the employer employed less than 15 people immediately prior to the Applicant's dismissal. An application for unfair dismissal therefore cannot be made by the Applicant and his application is dismissed.

DEPUTY PRESIDENT

Final written submissions:

Respondent, 14 August 2013

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