Nicole Peirce v Specsavers Pty Ltd T/A Specsavers
[2014] FWC 7105
•8 OCTOBER 2014
The attached document replaces the document previously issued with the above code on 9 October 2014.
Please note the name in paragraph [5] has been changed from Melissa Ryan to Melisa Raven.
Anita Carter
Associate to Deputy President Gooley
10 October 2014.
| [2014] FWC 7105 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Nicole Peirce
v
Specsavers Pty Ltd T/A Specsavers
(U2014/8736)
DEPUTY PRESIDENT GOOLEY | MELBOURNE, 8 OCTOBER 2014 |
Application for relief from unfair dismissal.
[1] Ms Nicole Peirce filed an application alleging that she was unfairly dismissed by Specsavers Pty Ltd. Specsavers Pty Ltd filed an application to dismiss Ms Peirce’s application on the grounds that it had not been made in accordance with the Fair Work Act 2009 or that it was frivolous and vexatious and had no reasonable prospects of success. Specsavers Pty Ltd contended that it was not Ms Peirce’s employer. In addition, Specsavers Pty Ltd lodged an objection to Ms Peirce’s application on the same grounds.
[2] Specsavers Pty Ltd advised that it was a shareholder of Specsavers Bendigo (Vic) Pty Ltd and that it was this company that employed Ms Peirce. It was submitted that Ms Peirce was also a shareholder of Specsavers Bendigo (Vic) Pty Ltd. It was submitted that Specsavers Pty Ltd is the franchisor and Specsavers Bendigo (Vic) Pty Ltd is the franchisee.
[3] On 19 September 2014, Ms Peirce was directed to file and serve a copy of her contract of employment and copy of her 2013/14 group certificate. Ms Peirce did not comply with that Direction.
[4] On 26 September 2014, directions were issued to Specsavers Pty Ltd to file and serve a statutory declaration, setting out the facts on which it relied to support its contention that it was not the employer of Ms Peirce. On the same date an email was sent to the parties advising that in light of Ms Peirce not filing any material, upon receipt of the statutory declaration that the matter would be decided on the material currently before the Commission.
[5] Specsavers Pty Ltd filed as statutory declaration of Ms Melisa Raven a HR Business Partner with Specsavers Pty Ltd. In that statutory declaration she attests to matters set out in paragraph [2] above. In addition attached to the statutory declaration was an undated contract of employment between Ms Peirce and Specsavers Bendigo (Vic) Pty Ltd, signed by Ms Peirce. In addition a PAYG payment summary for Ms Peirce was attached. That statement provided that the employer was Specsavers Bendigo (Vic) Pty Ltd.
[6] On 1 October 2014, a further email was forwarded to Ms Peirce. That email directed her to file and serve by close of business on 6 October 2014, a Statutory Declaration or submissions to support her claim that Specsavers Pty Ltd was her employer. That email further advised Ms Peirce that if she did not file any further material, the application would be determined on the basis of the material before the Commission and a decision would be issued without a hearing/conference.
[7] The Fair Work Act 2009 provides that if there are disputed facts, the Commission must hold a conference/hearing.
[8] In this matter, the only evidence before the Commission has been given by Specsavers Pty Ltd. As such, there is no factual dispute before the Commission and therefore a hearing/conference is not required to be held.
[9] On the evidence before the Commission, I am satisfied that Ms Peirce was not employed by Specsavers Pty Ltd.
[10] I find therefore, that Ms Peirce’s claim that she was unfairly dismissed by Specsavers Pty Ltd, has no reasonable prospect of success and her application for an unfair dismissal remedy is dismissed. An Order to that effect will be issued with this decision.
DEPUTY PRESIDENT
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