Michael Tissong v Hatrick Engineering Pty Ltd

[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

Printed by authority of the Commonwealth Government Printer

Michael Tissong, the applicant, sought relief from the Fair Work Commission (FWC) against Hatrick Engineering Pty Ltd, the respondent, on the basis of an alleged unfair dismissal. The matter was heard before Commissioner A. P. Lee, who was tasked with determining whether the FWC had the jurisdiction to hear the matter. The primary dispute centred around whether the dismissal was indeed unfair, as well as the FWC's authority to address the issue given the nature of the employment relationship and the applicable legislative framework.

The court was required to consider whether the dismissal was carried out in accordance with the provisions of the Fair Work Act 2009 (Cth) and whether the applicant's employment was genuinely casual, as argued by the respondent. The key issue was whether the FWC had the jurisdiction to hear the application for unfair dismissal remedy, considering the respondent's contention that the applicant's employment was not covered by the Act due to the casual nature of the relationship. The court had to evaluate the definition of a casual employee under the Act and determine if the applicant's employment fell within the scope of the FWC's jurisdiction.

In delivering the decision, Commissioner Lee found that the applicant's employment was not genuinely casual and, therefore, the FWC had the jurisdiction to hear the matter. The court relied on the evidence presented regarding the regularity and predictability of the applicant's work hours and the respondent's expectation of ongoing work. The Commissioner concluded that the applicant was entitled to protections under the Fair Work Act, and thus, the FWC had the authority to consider the merits of the unfair dismissal claim. The court then directed the matter to be heard on its merits to determine whether the dismissal was indeed unfair.

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