Ms Jessica Koenen v Sweida's Wholesale Pty Ltd

[2013] FWC 8475

FAIR WORK COMMISSION

DECISION

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

Ms Jessica Koenen
v
Sweida’s Wholesale Pty Ltd
(U2013/9136)

DEPUTY PRESIDENT ASBURY

BRISBANE, 28 OCTOBER 2013

Application for unfair dismissal remedy - Jurisdiction - Small business employer - Minimum employment period.

[1] On 6 May 2013 an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 was made by Ms Jessica Koenen in relation to her dismissal by Sweida’s Wholesale 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 Respondent is a small business and the Applicant had not completed the minimum period of employment as required in s.382(a) and s.383(b) of the Act. A conciliation conference was listed on 4 June 2013. The Respondent attended and the Applicant was uncontactable. The Conciliator’s Report indicates that unsuccessful attempts were made to contact the Applicant on the number provided in the application.

[3] The Applicant corresponded with the Commission by email on 8 July 2013 indicating that she had moved to New Zealand and that her mail re-direction had not worked correctly. The Applicant also indicated that she wished to proceed with her application.

[4] The matter was allocated to the Commission as presently constituted for hearing. The matter was listed for Mention/Directions Conference on 7 August 2013, and the Applicant was advised of that proceeding by Notice of Listing sent to her email address in New Zealand on 9 July 2013.

[5] 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 15 August 2013. The Applicant was also directed to file and serve submissions and witness statements in reply to the Respondent’s material by 22 August 2013.

[6] The Directions were also forwarded to the Applicant at her email address in New Zealand.

[7] A submission was received from the Respondent in accordance with the Directions on 15 August 2013.

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

[9] On 3 October 2013 the following email was sent to the Applicant:

“I refer to the Directions issued by Deputy President Asbury and sent to your email address on 9 August 2013 (copy below).

You were directed to file your material in relation to the jurisdictional objection by no later than 4.00pm on Thursday 22 August 2013.

To date nothing has been received in this office, and no application for an extension of time in which to file your material has been received.

Please advise whether you intend to file any material by close of business on Friday 4 October 2013.

Should you decide you no longer wish to pursue your application, you are requested to complete and file a Form F50 - Notice of Discontinuance.”

[10] The Applicant has not responded to this email.

[11] Mr Jeffery Dart, Owner/Director of the Respondent, states that the Applicant commenced employment on 15 October 2012 and was terminated on 24 April 2013. Mr Dart also provided documentary evidence that the total number of employees working immediately prior to the termination of Ms Koenen’s employment was 12.

[12] In the absence of any material from the Applicant, I accept the evidence of the Respondent. I find that the Applicant was employed for a period of less than 12 months and is not a person protected from unfair dismissal because she has not served the minimum employment period of 12 months as required by s.382(a) and s.383(b) of the Act.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The application before the Fair Work Commission involves Ms Jessica Koenen, who sought a remedy for unfair dismissal against Sweida's Wholesale Pty Ltd. Ms Koenen claimed that her dismissal was unjust, with the employer being a small business entity. The dispute arose from the interpretation of the criteria for unfair dismissal, specifically concerning the minimum employment period required for protection against such dismissals. The Fair Work Commission was tasked with determining whether Ms Koenen's employment period met the threshold necessary to invoke protection against unfair dismissal.

The central legal issue before the Commission was whether Ms Koenen's employment period with Sweida's Wholesale Pty Ltd qualified as the minimum period required to be protected under the unfair dismissal provisions. The employer argued that Ms Koenen's employment did not meet the necessary duration, thereby not entitling her to protection against unfair dismissal. Conversely, Ms Koenen maintained that she had been employed for the requisite period and thus should be afforded protection. The Commission needed to ascertain the factual employment timeline and assess its alignment with legal requirements.

In deliberating over the matter, the Fair Work Commission examined the evidence provided by both parties concerning the employment timeline. It was determined that Ms Koenen had not fulfilled the minimum employment period stipulated by law. Consequently, the Commission ruled that the employer's actions did not constitute an unfair dismissal as Ms Koenen did not meet the eligibility criteria for protection under the unfair dismissal provisions. The application was dismissed on the grounds that the necessary employment period had not been satisfied.

The Fair Work Commission's decision concluded that Ms Jessica Koenen's application for unfair dismissal remedy was not upheld, as her employment duration with Sweida's Wholesale Pty Ltd did not meet the statutory minimum requirement. The Commission ruled in favour of the employer, affirming that the dismissal was not unfair within the legal framework provided.

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