Miss Laura Smith v Hair House Warehouse Garden City

[2013] FWC 3606

[2013] FWC 3606

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miss Laura Smith
v
Hair House Warehouse Garden City
(U2013/5422)

DEPUTY PRESIDENT ASBURY BRISBANE, 5 JUNE 2013

Application for unfair dismissal remedy - Jurisdictional objection - Small business employer.

[1] On 3 January 2013 an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 was made by Ms Laura Smith in relation to her dismissal by Hair House Warehouse Garden City (the Respondent). Material on the file indicates that the following events occurred in relation to the application.

[2] In its response to the application, the Respondent provided information indicating that it is a small business employer, and that the Applicant’s employment period was for a period of less than 12 months. A conciliation conference was listed on 11 February 2013. The Respondent attended and the Applicant did not attend. The Conciliator’s Report indicates that unsuccessful attempts were made to contact the Applicant on her mobile telephone and by land line.

[3] The matter was allocated to the Commission as presently constituted for hearing. The matter was listed for Directions Conference on 26 April 2013, and the Applicant was advised of that proceeding by Notice of Listing sent to both her email address and posted to her postal address on 9 April 2013.

[4] The Applicant did not attend the Directions Conference, and attempts by my Associate to contact the Applicant on both her mobile telephone and land line were unsuccessful. Directions were issued requiring the Respondent to file and serve submissions and witness statements in relation to whether the Respondent is a small business employer; and whether the Applicant was employed on a casual basis for a period of less than 12 months. The Applicant was also directed to file and serve submissions and witness statements in reply to the Respondent’s material. In light of the Applicant’s non-appearance at the Conference, the Directions included the following:

NOTICE TO MS SMITH

Should Smith fail to provide the material as set out in 3. above by the due date, the matter will be determined on the material filed by the Respondent, and her application for an unfair dismissal remedy may be dismissed.

[5] The Directions were forwarded to the Applicant at the email address advised in her application, as well as posted to her postal address.

[6] A submission was received from the Respondent in accordance with the Directions. The Applicant has not complied with the Directions and has not contacted the Commission to provide an explanation for her failure to comply.

[7] The material filed by the Respondent advises that the Applicant was employed for a period less than 12 months. The Respondent also states that at the time of the Applicant’s dismissal, the Respondent had a total of seven employees.

[8] In the absence of any material from the Applicant, I have no option but to accept the facts as set out by the Respondent. I accept that the Respondent is a small business employer and that the Applicant was employed for a period of less than 12 months.

[9] Accordingly, the jurisdictional objection is upheld and I dismiss Ms Smith’s application for an unfair dismissal remedy. An Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

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