Miss Lorraine AndersonvDenning Road Lunch Supplies
[2010] FWA 4885
•14 JULY 2010
[2010] FWA 4885 |
|
INTERIM DECISION |
Fair Work Act 2009
s.773 - Application to deal with an unlawful termination dispute
Miss Lorraine Anderson
v
Denning Road Lunch Supplies
(C2010/4005)
COMMISSIONER CLOGHAN | PERTH, 14 JULY 2010 |
Unlawful termination.
[1] This is an application by Miss Lorraine Anderson (“the Applicant”) for Fair Work Australia to deal with an unlawful termination dispute.
[2] Miss Anderson alleges that she was unlawfully dismissed from her employment at Denning Road Lunch Supplies (“the Employer”) on 1 June 2010.
[3] The application was made pursuant to s.773 of the Fair Work Act 2009 (“the Act”).
[4] The application to Fair Work Australia was made on 8 June 2010 and a conference of the parties was held on 28 June 2010.
BACKGROUND
[5] The Applicant commenced employment with the Employer in September 2008. From March 2009, she was employed as a Van Driver which provides a take-away food service. While described by her Employer as a casual employee, it appears that Mss Anderson has been working regularly an average of 30 hours per week until she went on holidays in May of this year.
[6] On returning from holidays, Miss Anderson alleged that her hours have been reduced to six hours per week.
[7] In view of the reduced hours, the Applicant asked whether it was because she was pregnant. In response, the Employer advised “no, it’s because the girl that did your job whilst on holidays, did a better job than you”.
[8] The Applicant believes that the reduced hours are as a result of her being pregnant as, prior to her holidays, she carried out her duties satisfactorily.
[9] The Employer submitted that the Applicant has not been dismissed from her employment, however, it is true to say that her hours have been reduced but, as a casual employee, that is all the hours the Employer requires currently. Further, the Applicant has abandoned her employment, as she has not been available for work since 1 June 2010. The Employer conceded that he had been advised of Miss Anderson’s illness on 10 June 2010.
[10] At the conclusion of the conference on 28 June 2010, I advised the parties that the application was not straightforward as a result of a notation on the file stating that the Employer is “not a national system employer”. Consequently, it was necessary for me to give consideration to the statutory framework in which the application was made.
STATUTORY FRAMEWORK
[11] Section 773 is contained within Part 6-4 of the Act. The Guide to Part 6-4 of the Act is set out at s.769. The relevant parts are as follows:
- This Part contains provisions to give effect, or further effect, to certain international agreements relating to discrimination and termination of employment.
- Division 2 [of Part 6-4] makes it unlawful for an employer to terminate an employee's employment for certain reasons...In most cases, a dispute that involves the termination of an employee's employment will be dealt with by a court only if the dispute has not been resolved by FWA.
[12] For the purposes of Part 6-4, s.770 provides that employee and employer should have their ordinary meaning.
[13] Section 772 of the Act provides that:
(1) An employer must not terminate an employee's employment for one or more of the following reasons, or for reasons including one or more of the following reasons:
(a) ...
(b) ...
(c) ...
(d) ...
(e) ...
(f) ...pregnancy...
[14] Parts 6-1, 6-3 and 6-4 define employer and employee as having their ordinary meanings. Parts 6-2 and 6-5 define employee as meaning a “national system employee” and an employer as “a national system employer”.
[15] I conclude from this arrangement that if Parliament intended to limit Part 6-4 of the Act to national system employers and employees, it would have defined the meanings of employer and employee in identical terms to that contained in Parts 6-2 and 6-5. As Parliament has not limited Part 6-4 of the Act, to national system employers and employees, the Applicant is not restrained from making application pursuant to s.773.
[16] Consequently, having determined that Miss Anderson’s application is properly within the provisions of the Act, I intend to reconvene the conference in an attempt to resolve the dispute.
COMMISSIONER
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