Najib Lahoud v OX Metal Fabrication Pty Ltd
[2011] FWA 6963
•12 OCTOBER 2011
[2011] FWA 6963 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Najib Lahoud
v
OX Metal Fabrication Pty Ltd
(U2011/7709)
COMMISSIONER MCKENNA | SYDNEY, 12 OCTOBER 2011 |
Unfair dismissal - minimum employment period - small business.
[1] On 19 September 2011, I issued a decision ([2011] FWA 6226) in relation to this application in which Najib Lahoud (“the applicant”) was given the opportunity to file further materials on the discrete issue as to whether there were employees of associated entities to be taken into account in connection with a jurisdictional objection by OX Metal Fabrication Pty Ltd (“the respondent”). The decision read in part:
“[15] If the applicant does not file and serve anything further by noon on 10 October 2011 pursuant to this contingent direction, I foreshadow that I will then proceed to dismiss the application on the basis of what was before Fair Work Australia as at 9 September 2011, i.e., absent any other considerations, the documentary material comprising the payroll activity summaries supports the respondent’s contention it employed fewer than 15 employees when the applicant was dismissed and the applicant’s period of employment of less than one year otherwise was a matter of common ground.
[16] In the event the applicant files and serves any further materials in relation to the associated entity-related issue by noon on 10 October 2011, the respondent will be given the opportunity to respond. Such directions as may be appropriate as to further programming will then be issued in light of any materials that may be filed by the applicant.”
[2] Although the applicant filed a further submission on 7 October 2011, that submission did not address (potential) associated entities. The submission relevantly only reasserted that the respondent employed more than 15 employees, contrary to payroll activity statements relied on by the respondent which were produced pursuant to an order requiring the production of documents.
[3] In the circumstances, I consider it unnecessary for the respondent to file any materials in reply to the applicant’s submission and I propose, as foreshadowed in the earlier decision, to now dismiss the application.
[4] An order dismissing the application has been issued in conjunction with the issuing of this decision.
COMMISSIONER
Appearances:
N Lahoud on his own behalf.
T Tisdale, Director, for the respondent.
Hearing details:
2011.
Sydney.
September, 9
Final written submissions:
7 October 2011
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