Mr Tony McNally v Scott's Transport Industries Pty Ltd
[2010] FWA 3710
•11 MAY 2010
[2010 FWA 3710 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Tony McNally
v
Scott's Transport Industries Pty Ltd
(U2010/6568)
COMMISSIONER STEEL | ADELAIDE, 11 MAY 2010 |
Termination of employment – Jurisdictional objection – Minimum employment period – Application dismissed.
[1] The applicant is seeking a review of his dismissal from employment pursuant to s 394 of the Fair Work Act 2009 (Cth) (the Act).
[2] The respondent has objected to the application on, among others, the following grounds:
1. That the applicant is not protected from unfair dismissal as the applicant has not met the minimum employment period required under s 383 of the Act.
2. That a hearing on the merits of this matter should not proceed before the initial matters under s 396 of the act are determined.
[3] The matter of jurisdiction was set down by Fair Work Australia for hearing on 27 April 2010 at 2.00 pm, with the applicant to attend by video link in Mount Gambier. The applicant did not attend. Subsequent attempts to contact the applicant by phone thereafter the above time were not successful. The tribunal is satisfied the applicant was conversant with the requirements of the hearing and what was to occur at that time.
[4] In the absence of the applicant and in the circumstances of this application, FWA decided to hear the respondent’s submissions.
[5] Mr Kuczmarski, the Group Human Resource Manager for the respondent provided documentation from the respondent’s Payroll Manager, Mr Leon Cutting, by way of a statutory declaration. This document declared that the applicant was employed from 2 September 2009 until 24 February 2010, a period of less than six months.
[6] Also contained within FWA’s file on this matter, supplied by the respondent, were the applicant’s record of pay slips that indicated his first pay was on 8 September 2009. Also provided were the applicant’s ‘Employment Application Form’ signed by the applicant on 28 July 2009, with a nominated commencement date of 2 September 2009 and a Tax File Number Declaration, signed by the applicant on 2 September 2009.
[7] These documents were not sworn documents but FWA has found them to be informative as to the respondent’s case.
[8] The respondent submitted the application lacked jurisdiction and that it should be dismissed for that reason.
[9] Section 382 of the Act provides the requirements for a person to be protected from unfair dismissal. Section 383 of the Act states:
“383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.”
[10] The respondent is not a small business employer and hence the tribunal finds that the above definition applies to the applicant’s case.
[11] At 4.10 pm on the day of the hearing my Associate managed to contact the applicant by telephone. The applicant advised that he had forgotten about the hearing of this matter but did not wish to proceed with the application in any case.
[12] In consideration of all the available information, evidence and submissions FWA finds that this application does not fall within the jurisdiction of review of such matters conferred by the Act. As such the application is dismissed. An order will be issued to this effect.
COMMISSIONER
Appearances:
No appearance for the applicant.
Mr Kuczmarski for the respondent.
Hearing details:
Adelaide
2010:
27 April
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