Moses Nawah v MSS Security Pty Ltd

[2011] FWA 3121

[2011] FWA 3121

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Moses Nawah
v
MSS Security Pty Ltd
(U2011/4922)

COMMISSIONER ROBERTS DARWIN, 19 MAY 2011

Application for unfair dismissal remedy - jurisdiction (minimum employment period).

[1] This decision concerns an application by Mr Nawah lodged on 10 February 2011 pursuant to s.394 of the Fair Work Act 2009 (the Act). Mr Nawah claimed that his employment was unfairly terminated by MSS Security Pty Ltd (MSS or the Company). In its form F3 (Employer’s Response to Application for Unfair Dismissal), MSS claimed that Mr Nawah was not eligible to make his application because he had not completed the minimum employment period of at least six months as provided for in s.383 of the Act. It claimed that Mr Nawah commenced employment on 23 August 2010 and that his employment was terminated on 3 February 2011. In his application for relief, Mr Nawah claimed that his employment with MSS commenced in July 2010 thus putting the period of his employment at over six months.

[2] Conciliation was conducted by a Fair Work Conciliator occurred on 16 March 2011 by telephone but was not successful. Mr Nawah’s application was then set down for hearing before me in Darwin on 18 May 2011 to determine the jurisdictional objection by MSS. A notice of listing was issued on 24 March 2011 together with directions requiring the parties to file any submissions, witness statements or documentary evidence upon which they wished to rely in relation to the jurisdictional issue on or before 4 May 2011. MSS complied with those directions but nothing was filed by Mr Nawah.

[3] Shortly before the hearing was to commence, Mr Nawah advised that a family emergency would prevent him from attending. Mr Nawah further advised that he would provide documentary evidence in support of his claim to have worked for MSS in excess of six months later on the day of the hearing. Given the circumstances of the hearing, I decided to hear MSS on their objection and then to await the promised documentary evidence from Mr Nawah. MSS agreed that I would examine any documentary evidence supplied by Mr Nawah, provide the Company copies and then decide if any such evidence required a response from MSS.

[4] At the hearing, MSS called sworn evidence from Mr M Burleigh, its General Manager SA and NT. Mr Burleigh submitted a witness statement 1. It was Mr Burleigh’s evidence that Mr Nawah was offered employment with the Company on 23 August 2010 and took up that employment on or about 12 September 2010. The employment was terminated on 3 February 2011. The letter of offer to Mr Nawah2 was submitted into evidence as part of Mr Burleigh’s witness statement and that letter of five pages bears Mr Nawah’s signature on each page. A copy of the Company’s Standard Conditions of Employment bearing Mr Nawah’s name and signature on each page and dated 23 August 2010 was also submitted into evidence3. Other documentary evidence submitted by Mr Burleigh consisted of a letter dated 12 November 2010 varying the position held by Mr Nawah4 and a further Standard Conditions of Employment document bearing the name and signature of Mr Nawah and dated 12 November 2010. Also provided was a copy of the letter of termination issued to Mr Nawah and dated 3 February 20115 and a copy of a pay slip6 for the fortnight ending 26 September 2010 which, according to Mr Burleigh, was the first pay slip issued to Mr Nawah following the commencement of his employment. I accept Mr Burleigh’s evidence as truthful.

[5] No material was received from Mr Nawah by the afternoon of 18 May and I made telephone contact with him in this regard. Mr Nawah told me that he was unable to file his material as promised but that he was in possession of pay advices from MSS which would on their face rebut the jurisdictional objection. I then allowed Mr Nawah until 10 am on 19 May to provide me with the promised material. Documentary material was duly lodged in the Darwin Registry within the time frame allowed.

[6] Much of the material filed by Mr Nawah on 19 May is the same as that submitted as part of Mr Burleigh’s witness statement. In addition, Mr Nawah supplied copies of a number of pay advices by MSS, the earliest of which refers to a pay period ending 10 October 2010. There is nothing in material supplied by Mr Nawah to indicate that he was employed for a period of at least six months. Given that Mr Nawah is unrepresented in this matter, I made further telephone contact with him on 19 May to inform him of my view in relation to the documentary material he filed. It became clear to me during the conversation that Mr Nawah was not in possession of material which would show an employment period with MSS of at least six months and I advised him that it was therefore my intention to uphold the jurisdictional objection of the Company.

[7] In the light of the material filed by Mr Nawah and my subsequent telephone discussion with him, there is no utility in seeking a further response from MSS.

[8] Accordingly, I find that the jurisdictional objection by the Company is made out and the Tribunal therefore has no jurisdiction to hear Mr Nawah’s substantive application for relief. Mr Nawah’s application is therefore struck out.

COMMISSIONER

Appearances:

D Sweet for MSS Security Pty Ltd.

Hearing details:

2011.

Darwin:

May 18.

 1   Exhibit MSS 1.

 2   Attachment MB1 to Exhibit MSS 1.

 3   Ibid.

 4   Attachment MB2 to Exhibit MSS 1.

 5   Attachment MB3 to Exhibit MSS 1.

 6   Attachment MB4 to Exhibit MSS 1.

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