Mr John Husson v Complete Beverage Services
[2009] FWA 1195
•20 NOVEMBER 2009
[2009] FWA 1195 |
|
DECISION |
Workplace Relations Act 1996
s.643 - Application for relief re (Harsh, Unjust or Unreasonable) termination of employment
v
Complete Beverage Services
(U2009/11242)
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 20 NOVEMBER 2009 |
Alleged termination of employment – harsh, unjust or unreasonable – jurisdictional objections – application lodged out of time and less than 100 employees
[1] On 13 August 2009 Mr.John Husson lodged an application alleging that the termination of his employment on 18 June 2009 was harsh, unjust or unreasonable within s.643(1)(a) of the Workplace Relations Act 1996.
[2] The Workplace Relations Act 1996 (Cth) provides that certain employees are excluded from making an application for relief under s.643(1)(a).
[3] On 2 September 2009 Complete Beverage Services Pty Ltd lodged a motion to dismiss the matter on the basis that the respondent employed fewer than 100 employees, s.643(10) of the Act, and objected to conciliation prior to the motion being dealt with. It also objected to the Commission extending time for lodgement and objected to conciliation before the determination of the application to extend time.
[4] On 8 September 2009 I issued notices of invitation pursuant to s.648 of the Act, indicating that I had decided not to hold a hearing at that stage for the purposes of deciding whether or not to extend time, and whether the application was outside jurisdiction because the respondent employed fewer than 100 employees.
[5] I invited the applicant and the respondent to provide further information regarding any extension of time, and whether the matter was outside jurisdiction because the respondent employed fewer than 100 employees by 21 September 2009, and for further information in reply on 28 September and 5 October 2009.
[6] No response was received from any party.
[7] Further notices of invitation were sent out on 13 October 2009. On 17 October 2009 the applicant provided a written submission. In that submission the applicant again did not contest the employer’s claim in a written submission and statutory declaration that it employed 14 employees. The employer wrote to Fair Work Australia on 5 November 2009 asking when a decision would be handed down, and adopting the submission it put earlier.
100 Employees or Fewer
[8] Section 643 of the Act provides inter alia:-
(10) An application under subsection (1) must not be made on the ground referred to in paragraph (1)(a), or on grounds that include that ground, if, at the relevant time, the employer employed 100 employees or fewer, including:
(a) the employee whose employment was terminated; and
(b) any casual employee who had been engaged by the employer on a regular and systematic basis for at least 12 months;
but not including any other casual employee.
[9] On 3 September 2009 the respondent provided Fair Work Australia with the Statutory Declaration of Mr Craig Fuller, Managing Director for Complete Beverages Services Pty Ltd, stating he has reviewed the payroll of Complete Beverages at 18 June 2009 and that it employed 14 employees. A copy of the payroll listing 14 employees was attached.
[10] The applicant did not contest the employer claim that the employer employed 14 employees and was therefore an employer that employed 100 or fewer employees, including in response to the further notices of invitation forwarded to the parties on 13 October 2009. On 17 October 2009 the applicant provided a written submission.
[11] I am satisfied that the employer employed 100 employees or less within s.643(10). I am required to dismiss the matter. An order dismissing the matter is issued as PR990999.
DEPUTY PRESIDENT
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