Mr Jaynz Duncan v Melsteel Constructions Pty Ltd T/A Melsteel Constructions Pty Ltd

[2013] FWC 921

[2013] FWC 921

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Jaynz Duncan
v
Melsteel Constructions Pty Ltd T/A Melsteel Constructions Pty Ltd
(C2012/6354)

COMMISSIONER ROE MELBOURNE, 8 FEBRUARY 2013

Decision - general protections dispute- jurisdiction: termination of employment.

[1] An Application was made by Mr Jaynz Duncan (the Applicant) on 24 December 2012 pursuant to Section 365 of the Fair Work Act 2009 (the Act) alleging contravention of Part 3-1 of the Act involving dismissal. The Applicant alleged that he was terminated by Melsteel Constructions Pty Ltd (Respondent or Melsteel) on 4 November 2012. The date of 4 November 2012 was included in the Application however it was altered to 29 October 2012 during the proceedings.

[2] A conference was held on 6 February 2012 and the matter in dispute was unable to be resolved at that conference. During the conference the Respondent raised an objection that the Applicant had not been dismissed. The uncontested submission of the Respondent is that the Applicant was on sick leave between 6 and 20 August 2012 and that this absence was covered by a medical certificate. There was no contact with the employer or provision of any medical certificate to the employer during the period from 20 August 2012 until a telephone call on or about 29 October 2012. In that telephone call the Applicant inquired about return to work and the Respondent said words to the effect that he could not return to work until some matters were resolved including explanation for his absence. There is a disagreement between the parties about exactly what was said in the conversation but the parties agree and I am satisfied that the Applicant was not dismissed at the initiative of the employer in that conversation.

[3] As I am satisfied that the Applicant was not dismissed I cannot issue a certificate pursuant to Section 369 of the Act. This is because the jurisdictional requirement in Section 365(a) that the “person has been dismissed” has not been met.

[4] The Application is therefore dismissed. An Order to this effect will be issued.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR533946>