Ms Tiffany Walpole v PacFood Pty Ltd

[2019] FWC 4360

[2019] FWC 4360

FAIR WORK COMMISSION

DECISION

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

Ms Tiffany Walpole
v
PacFood Pty Ltd
(U2019/4138)

DEPUTY PRESIDENT ASBURY BRISBANE, 25 JUNE 2019

Application for an unfair dismissal remedy.

[1] This Decision concerns an application made by Ms Tiffany Walpole under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of her dismissal by PacFood Pty Ltd (PacFood). Ms Walpole’s application for an unfair dismissal remedy states that she commenced employment on 9 July 2018 and that she was notified of her dismissal on 8 April 2019, with her dismissal taking effect that day.

[2] In its Form F3 Employer Response to the Application PacFood objected to the application asserting that:

•  PacFood is a small business employer as defined in s. 23 of the Act and employed less than 15 employees at the time that Ms Walpole was dismissed; and

•  Ms Walpole had not completed the minimum period of employment of one year at the time her employment was terminated as required by s. 382 and s. 383 of the Act.

[3] The matter was allocated to me to determine the jurisdictional objection. It was listed for Mention/Directions/Conference on 4 June 2019. On 30 May 2019 the PacFood emailed a number of documents to my chambers including a payroll activity statement for the period 1 April 2019 to 30 April 2019 listing 10 employees including Ms Walpole and Ms Walpole’s contract of employment evidencing that the date that Ms Walpole commenced employment was 8 July 2018.

[4] During the Conference on 4 June 2019 I informed Ms Walpole of the requirements of the Act for her to be a person protected from unfair dismissal so as to be able to make an application under s. 394 of the Act. I also gave Ms Walpole a further opportunity to respond to the matters raised by PacFood and indicated to her that if PacFood had less than 15 employees at the time that she was dismissed and her period of employment was less than 12 months, then she was not a person protected from unfair dismissal and that I would be required to dismiss her application.

[5] Ms Walpole indicated that she did not agree with the legislative provisions and maintained that she had been unfairly dismissed and that the Commission should deal with her application. I adjourned the Conference and issued further Directions requiring that Ms Walpole provide a statement by 4.00 pm on 7 June 2019 addressing the matters in ss. 23, 282 and 283 of the Act if she wished to dispute the assertions made by PacFood that it is a small business employer and that Ms Walpole had not served the required minimum employment period. The relevant legislative provisions were appended to the Directions and they also included a reference to the relevant sections of the Commission’s Unfair Dismissals Bench Book. The Directions further stated that if Ms Walpole did not provide the information required then her unfair dismissal application may be dismissed without further notice.

[6] Ms Walpole did not provide a statement as required by the Directions within the required time. On 10 June 2019 PacFood corresponded with my Associate in relation to the status of the matter. That correspondence was forwarded to Ms Walpole who responded on 12 June 2019 indicating her view that the legislative provisions are ridiculous and that it should not matter whether 100 people or 1 person works for a Company in relation to requirements to treat employees fairly at work. The email went on to state that Ms Walpole was 1 of 10 employees and that she believed that she had been unfairly dismissed. I note that PacFood disputes the assertions that it has unfairly dismissed Ms Walpole.

[7] I understand and accept that Ms Walpole is dissatisfied with the fact that her application cannot be dealt with by the Commission. However, I am satisfied that Ms Walpole is not a person protected from unfair dismissal as provided in s.382 of the Act on the basis that PacFood is a small business employer as defined in s.23 and Ms Walpole has not served the minimum employment period of 12 months as required in s.383. Accordingly, I am required to dismiss Ms Walpole’s unfair dismissal application. An Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

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