William Lewis v Kajiks Showers & Robes Pty Ltd T/A SmartRobes

[2017] FWC 1697

[2017] FWC 1697

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

William Lewis
v
Kajiks Showers & Robes Pty Ltd T/A SmartRobes
(C2017/674)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 24 MARCH 2017

Application to deal with contraventions involving dismissal.

[1] Mr William Lewis alleged that the termination of his employment by Kajiks Showers & Robes Pty Ltd was in breach of the general protections provisions of the Fair Work Act 2009.

[2] There was no appearance by Kajiks at the telephone conference today. The matter was listed for conference/hearing at 9am AEST as the parties were located in Queensland.

[3] On 20 March 2017, as Kajiks had not filed any material in response to this application, my Associate contacted Mr Shoaib Mohammed, who had been listed as the contact person for Kajiks, to confirm that he had received the documentation and that he was aware of the hearing. Mr Mohammed confirmed in that telephone conversation that he was aware of the hearing and that it was to commence at 9am. When called for the hearing, Mr Mohammed did not answer the telephone call and was not available for the conference. I determined that I was satisfied that Kajiks was aware of the time and date of the hearing and that the matter should proceed in its absence.

[4] Mr Mohammed subsequently called my chambers at 10.14am and he was advised that the conference had ended and he would be provided with a copy of the decision.

[5] In his application, Mr Lewis said his dismissal took effect on 13 January 2017 and as such his general protections application lodged on 7 February 2017 was not made within 21 days of the date the dismissal took effect.

[6] In the filed outline of argument, Mr Lewis said that he had not been dismissed and he continued to work until 27 January 2017. He complained that he was not paid for his work but he had continued working. When Kajiks would not return his calls, he decided to treat his employment as being at an end. At the hearing, Mr Lewis gave evidence on oath that his last day of work was 2 February 2017. It was at this time he decided that he would no longer work for Kajiks as it had not rectified the underpayment.

[7] I am satisfied that the non-payment of wages entitled Mr Lewis to treat his contract of employment as being at an end. Whether this be a termination at the initiative of employer or a constructive dismissal or a resignation does not need to be determined for the purpose of determining whether Mr Lewis’ application was lodged within time. I am satisfied on the evidence before me that he lodged his application within 21 days of termination of his employment and therefore it is not necessary for me to consider whether Mr Lewis should be granted an extension of time.

[8] The application will be referred to conciliation in accordance with the Act.

DEPUTY PRESIDENT

Appearances:

W. Lewis on his own behalf.

No appearance by Respondent.

Hearing details:

2017.

Queensland and Victoria, by telephone link:

24 March.

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