Neisha Smith v Perfect Potion Pty Ltd T/A Perfect Potion

[2015] FWC 8551

[2015] FWC 8551

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Neisha Smith
v
Perfect Potion Pty Ltd T/A Perfect Potion
(U2015/12495)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 15 DECEMBER 2015

Application for relief from unfair dismissal.

[1] On 28 October 2015 Ms Neisha Smith made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy on the basis that her dismissal as a retail assistant at Perfect Potion Pty Ltd (Perfect Potion) was unfair.

[2] In her application form, Ms. Smith submitted that her dismissal took effect ‘week of 21 September 2015’, and the application was therefore up to 16 days out of time, on her own submission. However, she also states that she was notified of the dismissal on 9 October 2015. The application is within 21 days of this notification. She was employed as a casual employee.

[3] In November 2015 the employer lodged a jurisdictional objection stating that the application was out of time and that Ms. Smith was not dismissed.

[4] On 30 October 2015 the Fair Work Commission (the Commission) sent Ms. Smith a letter indicating that the application was lodged outside the legislated time frame and if Ms. Smith wished to pursue the application it would be listed for a conference or hearing to determine whether to allow an extension of time. The issue of dismissal was not mentioned.

[5] The application was listed for hearing on 11 December 2015. By request of the parties the hearing was cancelled and the matter is determined on the papers, without a hearing.

Consideration

[6] Section 394 of the Act provides:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[7] In this case Ms.Smith wrote to the employer on 8 October 2015 asking what had happened to her job at Perfect Potion 1. The employer responded on 9 October 20152 stating that the employer had attempted to make contact with Ms.Smith but that the phone number they had declined their calls. Other attempts were made to contact her. The employer advised that ‘we no longer have any casual shifts to offer you’ and gave reasons for this decision. This was the notification of termination.

[8] There was no communication of a termination of employment until that communication on 9 October. It is well established that a dismissal does not take effect until it is communicated to the employee who is being dismissed: Burns v. Aboriginal Legal Service 3. The application for an unfair dismissal remedy was therefore within time.

[9] The employer states that no dismissal took place 4. In this case the employer stated that they would provide no more shifts. Ms.Smith had worked for the employer from 12 July 2011. It is clear that a dismissal took place. Ms.Smith’s employment was terminated at the employer’s initiative: Mohazab v. Dick Smith Electronics5.

[10] None of the facts of the case concerning the jurisdictional objection are in dispute. The matter does not involve facts the existence of which is in dispute (s.397). The employer’s jurisdictional objections are dismissed. An order is contained in PR575016.

DEPUTY PRESIDENT

 1   Respondent Submission, Attachment 6

 2   Respondent Submission, Attachment 7

 3   Full Bench, 21 November 2000, Print T3496

 4   Form F3, paragraph 1.4

 5 (1995) 62 IR 200 at 205

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