Mr Luke Hill v Command Group Pty Ltd

[2013] FWC 7321

[2013] FWC 7321

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Luke Hill
v
Command Group Pty Ltd
(U2013/7281)

DEPUTY PRESIDENT ASBURY BRISBANE, 23 SEPTEMBER 2013

Application for unfair dismissal remedy - Jurisdiction - Minimum employment period.

[1] On 7 March 2013 an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 was made by Mr Luke Hill in relation to his dismissal by Command Group Pty Ltd (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 the Applicant had not completed 6 months continuous service. A conciliation conference was listed on 30 April 2013. The Applicant attended and the Respondent was uncontactable. The Conciliator’s Report indicates that unsuccessful attempts were made to contact the Respondent by mobile telephone and on the number provided in the Response to the application. The Applicant indicated that he wished to proceed to arbitration.

[3] The matter was allocated to the Commission as presently constituted for hearing. The matter was listed for Directions Conference on 19 June 2013, and the Applicant was advised of that proceeding by Notice of Listing sent to both his email address and posted to his postal address on 6 June 2013.

[4] Directions were issued requiring the Respondent to file and serve submissions and witness statements in relation to whether the Applicant was employed for the minimum employment period by 27 June 2013. The Applicant was also directed to file and serve submissions and witness statements in reply to the Respondent’s material by 4 July 2013.

[5] The Directions were forwarded to the Applicant at the email address advised in his application.

[6] A submission was received from the Respondent in accordance with the Directions. On 4 July 2013 the Applicant requested an extension in which to file his submissions. The Commission granted the application for an extension for the Applicant to file his submissions and witness statements until 11 July 2013.

[7] On 10 July 2013 the Applicant requested a further extension in which to file his submissions. The Commission granted the application for an extension for the Applicant to file his submissions and witness statements until 26 July 2013.

[8] The Applicant has not complied with the extended time frame and no submissions or witness statements have been received from the Applicant.

[9] On 23 July 2013 the Applicant spoke to my Associate by telephone and advised that he had requested a Visa extension, but it was unlikely to be granted. The Applicant said he would seek legal advice and he would advise his solicitor to contact chambers to further explain the situation.

[10] On 20 August 2013 the following email was sent to the Applicant:

“I refer to the above matter and your telephone conversation with this office on 23 July 2013 when you were asked whether you intended to pursue the application.

You indicated that you were seeking legal advice and this office would be contacted by your solicitor.

To date no contact has been made with this office.

You are requested to advise this office in writing if you intend to pursue your application.  Should you wish to withdraw your application, you are requested to complete the attached Form F50 – Notice of Discontinuance and return it to this office as a matter of urgency.

Should you fail to provide a response by 4.00pm on Friday 23 August 2013 the matter will be determined on the material on the file, and your application for an unfair dismissal remedy may be dismissed.”

[11] Mr Jethro Baker, a Director of the Respondent, provided a witness statement that the Applicant commenced employment on 15 October 2012. Mr Baker also provided documentary evidence as follows:

● Emails stating that the Applicant was offered employment with a commencement date of 15 October 2012;
● Email dated 16 October 2012 welcoming the Applicant to the team;
● Emails to the Applicant dated 26, 29 and 31 October 2012 confirming back account and other details such as the Applicant’s choice of superannuation fund and tax information;
● Tax File Number Declaration Form dated 26 October 2012.

[12] In the absence of any material from the Applicant, I accept the evidence of the Respondent. I accept that the Applicant was employed for a period of less than 6 months.

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

DEPUTY PRESIDENT

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