Tracey Sweet v Aspl Australia Pty Ltd T/A Aspl Recruitment and Consulting

[2019] FWC 4797

[2019] FWC 4797

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tracey Sweet
v
ASPL Australia Pty Ltd T/A ASPL Recruitment and Consulting
(U2019/5614)

COMMISSIONER BISSETT MELBOURNE, 10 JULY 2019

Application for an unfair dismissal remedy.

[1] On 21 May 2019, Ms Tracey Sweet made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy.

[2] In her Form F2 – Unfair Dismissal Application (Form F2), Ms Sweet said she was notified her employment had been terminated by ASPL Australia Pty Ltd T/A ASPL Recruitment and Consulting (ASPL) on 3 May 2019, and that it took effect on the same day.

[3] A Form F3 – Employer response to unfair dismissal application (Form F3) was filed on 21 June 2019 by ASPL, which stated that it objected to the application on the basis that “the application is out of time (ie lodged more than 21 days after the dismissal took effect)”. However, the Form F3 did not dispute that Ms Sweet’s dismissal took effect on 3 May 2019 and as the Form F2 was lodged on 21 May 2019, the application was made 18 days after the dismissal took effect and therefore, was made within time.

[4] On 28 June 2019 and 1 July 2019, the Commission attempted to contact Ms Kris Grant, the contact person nominated in the Form F3 for ASPL, to clarify its position in relation to the jurisdictional objection raised. Voicemail messages were left on each occasion requesting Ms Grant to return the Commission’s calls.

[5] As no contact was received from ASPL, the Commission sent correspondence to Ms Grant via email on 2 July 2019 which noted that ASPL had lodged a jurisdictional objection stating that Ms Sweet’s application had been lodged outside the 21 day limit, and further advised that the application had in fact been made within time. The correspondence requested ASPL’s response by 12:00pm on 3 July 2019 advising whether it wished to maintain its objection or, alternatively, withdraw its objection.

[6] On 3 July 2019, the Commission spoke to Ms Teagan Osborne of ASPL who advised that the jurisdictional objection had been made as Ms Sweet had filed three applications at different times and ASPL was unsure which application was proceeding. The Commission advised Ms Osborne that the other two applications had been discontinued and that only this current matter, with matter number U2019/5614, would be going ahead. Ms Osborne was unable to give instructions as to whether ASPL wished to withdraw its jurisdictional objection but advised that she would make some enquiries and have Ms Grant return the Commission’s email dated 2 July 2019.

[7] To date, the Commission has not heard back from ASPL regarding its position that Ms Sweet’s application had been made out of time.

[8] Section 394(2) of the Act states:

“394 Application for unfair dismissal remedy

(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).”

[9] As there is no dispute that Ms Sweet’s dismissal took effect on 3 May 2019 and having made her application on 21 May 2019, 18 days after her dismissal took effect, there is no evidence before me to suggest that this unfair dismissal application is out of time.

[10] I therefore find that the application was made within the time limit prescribed by the Act.

[11] The matter will be referred for arbitration to determine Ms Sweet’s substantive application.

[12] An Order to that effect will be issued shortly.

COMMISSIONER

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