Ms Cheryl Tutaki v Pascoes Pty Ltd

[2014] FWC 7574

[2014] FWC 7574

FAIR WORK COMMISSION

DECISION

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

Ms Cheryl Tutaki
v
Pascoes Pty Ltd
(U2014/7983)

DEPUTY PRESIDENT BOOTH SYDNEY, 24 OCTOBER 2014

Application for relief from unfair dismissal.

[1] Cheryl Tutaki was employed by Pascoes Pty Ltd (Pascoes) as a casual process worker until the termination of her employment on 30 May 2014.

[2] Ms Tutaki has lodged an application pursuant to s.394 of the Fair Work Act 2009 for an unfair dismissal remedy.

[3] Pascoes Pty Ltd objects to this application on the grounds that Ms Tutaki has not served the minimum employment period required by the Act for a person to be protected from unfair dismissal. 1 Pascoes is not a small business employer so the minimum employment period is 6 months.2

[4] Pascoes says Ms Tutaki was employed by them on 4 April 2014. Ms Tutaki says she was employed by Pascoes on 15 October 2013. If Pascoes is correct Ms Tutaki has not served the minimum employment period and Pascoes jurisdictional objection must be upheld and Ms Tutaki’s application dismissed.

[5] When this matter was before the Commission on 29 September 2014 Ms Tutaki did not appear. I have confirmed that the notice of listing sent on 30 July 2014 was sent to the correct email address. Pascoes was represented by Mr Williams and I heard his submissions in support of Pascoes jurisdictional objection.

[6] Ms Tutaki was sent the transcript, exhibits and further material provided after the hearing by Mr Williams. I gave her until 6 October 2014 to provide submissions and seek a hearing if she so wished. Ms Tutaki acknowledged my Associate’s email of 29 September 2014 but as at the date of this decision she has not provided submissions or sought a hearing.

[7] The question I must address is what was the date that Pascoes employed Ms Tutaki?

[8] Mr Williams says that Ms Tutaki was employed by Kelly Services, a “casual agency” and worked at Pascoes pursuant to a contract between Kelly Services and Pascoes from 5 October 2013 until they employed her on 4 April 2014. 3

[9] A contract of employment dated 4 April 2014 between Ms Tutaki and Pascoes was provided to the Commission.

[10] Mr William’s says that Pascoes paid Kelly Services on presentation of invoices for Ms Tutaki’s services. Mr William’s provided the Commission with a letter from Kelly Services stating:

“29 September 2014

To Whom it May Concern:

This letter serves to confirm that Chery Tutaki of (address withheld) was working on an ongoing casual assignment with Kelly Services on hired to Pascoes from 5 October 2013 until 9 April 2014.

Should you have any more questions in regards to the status of Miss Tutaki’s employment, please do not hesitate to contact me on (contact details withheld).

Yours Sincerely,

KELLY SERVICES (AUSTRALIA) LTD”

[11] This letter is consistent with material presented to the Commission that Mr William’s says was provided to him by Emma Barber from Kelly Services. This material contained a list of the occasions that Ms Tutaki was deployed at Pascoes by Kelly Services covering the week ending 6 October 2013 to the week ending 13 April 2014.

[12] In the absence of submissions from Ms Tutaki I have relied on the submissions of Mr Williams and documentary material supplied by him.

[13] I conclude on the balance of probabilities that Ms Tutaki was employed by Pascoes on 4 April 2014 or later and that she has not served the minimum employment period of 6 months. I order that Pascoes jurisdictional objection is upheld. Ms Tutaki’s unfair dismissal application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr M Williams, for the Respondent.

Hearing details:

2014.

Sydney:

29 September

Final written submissions:

Respondent: 3 July 2014.

 1 Section 382 Fair Work Act 2009.

 2 Section 383 Fair Work Act 2009.

 3   Transcript PN 16

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