Ms Min Yu v Azzura Gelati

[2010] FWA 4624

[2010] FWA 4624

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.372 - Application to deal with other contravention disputes

Ms Min Yu
v
Azzura Gelati
(C2010/3509)

COMMISSIONER CLOGHAN PERTH, 23 JUNE 2010

Other contravention disputes.

[1] On 22 April 2010, Ms Min Yu (“the Applicant”) made application pursuant to s.365 of the Fair Work Act 2009 (“the Act”) seeking Fair Work Australia to deal with a General Protections Dispute.

[2] The respondent employer to the application is Azzura Gelati (“the Employer”).

[3] Pursuant to s.368(1) of the Act, a conference was conducted to deal with the dispute on 25 May 2010.

[4] At the conference, the Applicant was assisted by an interpreter. The Employer was represented by the Chamber of Commerce and Industry.

[5] Following the conclusion of the conference, it was uncertain as to whether the provisions of s.365 of the Act had been met, that is, the Applicant had been dismissed from her employment.

[6] To assist the Tribunal in making a determination, I issued an Interim Decision on 8 June 2010 inviting the Applicant and Employer to provide written submissions on whether:

• the Applicant was dismissed by the Employer; and

• that dismissal (if it occurred) was in contravention of part 3-1 of the Act.

[7] Written submissions were provided to the Tribunal by the Applicant and Employer on 14 June and 15 June 2010 respectively.

[8] The Applicant commenced employment with the Employer in October 2007 as a casual “packer/cleaner”. The Employer is a specialist manufacturer of Italian ice cream, gelati, frozen desserts, fruit sorbets and cheesecakes. The Applicant did not have a formal contract of employment with the Employer.

[9] In October 2009, the Applicant advised the Employer that she was having a medical operation and would be unavailable for work until or around 10 December 2009. As the Applicant was a casual employee, the Employer did not seek or receive a medical certificate.

[10] Some employees of the Employer were unhappy with Ms Yu having time off as it was leading up to the busy summer production time, and the Applicant had let it be known that she was intending to holiday in China. However, irrespective of these circumstances, it is uncontested that she took time off work during this period.

[11] On 8 December 2009, the Employer forwarded a text message to the Applicant advising that it was unable to provide any hours of work to the Applicant, at that time.

[12] Towards the end of 2009, the Employer had experienced a significant downturn in demand for its products. This downturn was attributed to the Global Financial Crisis and resulted in: reallocation of duties of employees; greater mechanisation of production; reduced deliveries by truck and redeployment of truck drivers; reduced hours of work for employees and a reduction of overseas orders.

[13] After a period of attempts to meet with the Applicant, a meeting of the parties was finally held on 10 March 2010 between Ms Yu and the Employer.

[14] At the meeting on 10 March 2010, the Applicant was advised that, as she was a casual employee, she remained on their “call list” and would be contacted as and when work became available.

[15] Following the meeting, there is a dispute between the parties regarding whether the Applicant was available or not for ongoing employment. According to the Employer, the Applicant advised that she was completely unavailable from 12 March 2010. The Applicant contends that she was available, ready and willing to continue as a casual employee.

[16] Having considered the application to Fair Work Australia, submissions at conference and written submissions, I am satisfied that the Applicant was not dismissed from her employment. Further, unless the Applicant takes a different view, she still remains on the Employer’s “call list” for work when it is available.

[17] In conclusion, as the provisions of s.365(a) have not been met, I am unable to issue a Certificate pursuant to s.369 of the Act.

[18] An order will be issued dismissing the application as the necessary jurisdictional requirements have not been met.

COMMISSIONER

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