[2007] AIRC 980 |
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.643 - Appl’n for relief re (HUU) termination of employment
Miss Gretta Gardner-Fluck
and
Makin Mattresses Pty Ltd
(U2007/6525)
SENIOR DEPUTY PRESIDENT O’CALLAGHAN |
ADELAIDE, 19 NOVEMBER 2007 |
termination of employment – jurisdiction – 100 employees or fewer.
DECISION
[1] This decision deals with an application lodged by Miss Gardner-Fluck pursuant to section 643(1)(a) of the Workplace Relations Act 1996 (the Act). Miss Gardner-Fluck seeks relief relative to the termination of her employment with Makin Mattresses Pty Ltd (Makin). The application is made on the grounds that the termination of Miss Gardner-Fluck's employment was harsh, unjust or unreasonable.
[2] Miss Gardner-Fluck's application was lodged on 19 October 2007. On 1 November 2007 Makin filed a Notice of Employer’s Appearance. Makin also filed a Notice of Motion to dismiss the application for want of jurisdiction on the basis that Miss Gardner-Fluck was excluded from bringing an action pursuant to section 643(1)(a) of the Act by virtue of section 643(10). Makin objected to conciliation until this preliminary matter was determined.
[3] Attached to the employer’s motion was a statutory declaration sworn by Mr Ed O’Neill, the General Manager of Makin. In this affidavit Mr O’Neill advises that Miss Gardner-Fluck’s employment was terminated on 9 October 2007 with payment of two weeks in lieu of notice. Mr O’Neill advised that Makin had only one related corporate entity and that, taking this related corporate entity into account, Makin had, at the time of the termination of Miss Gardner-Fluck's employment, less than 100 employees. Attached to Mr O’Neill’s statutory declaration was a payroll summary for both these corporate entities for the period 4 October 2007 to 10 October 2007. The total number of employees for both entities over this time was 73.
[4] Makin advised of the costs that it would incur if it was required to attend at a hearing.
[5] On 1 November 2007 I issued directions in which I confirmed to the parties that I did not intend to convene a hearing with respect to the employer’s motion. A copy of this motion, and Mr O’Neill’s affidavit was provided to Miss Gardner-Fluck. These directions stated:
“Unless the information provided in the affidavit of Mr O’Neill is successfully challenged, Ms Gardner-Fluck is excluded from making an application on the grounds that the termination of her employment was harsh, unjust or unreasonable.”
[6] The directions invited Miss Gardner-Fluck to provide information by 15 November 2007 relative to employee numbers and the provisions of section 643(10) in response to the Makin position.
[7] Nothing further has been received from Miss Gardner-Fluck.
[8] Section 643(10), (11) and (12) state:
“643 Application to Commission to deal with termination under this Subdivision
….
(10) An application under subsection (1) must not be made on the ground referred to in paragraph (1)(a), or on grounds that include that ground, if, at the relevant time, the employer employed 100 employees or fewer, including:
(a) the employee whose employment was terminated; and
(b) any casual employee who had been engaged by the employer on a regular and systematic basis for at least 12 months;
but not including any other casual employee.
(11) For the purposes of calculating the number of employees employed by an employer as mentioned in subsection (10), related bodies corporate (within the meaning of section 50 of the Corporations Act 2001) are taken to be one entity.
(12) For the purposes of subsection (10):
(a) the relevant time is the time when the employer gave the employee the notice of termination, or the time when the employer terminated the employee’s employment, whichever happened first; and
(b) for the purposes of calculating the number of employees employed by the employer, employee has the same meaning as in paragraph (b) of the definition of that term in section 636.”
[9] Miss Gardner-Fluck's application specifies that the termination of her employment occurred on 9 October 2007. This is consistent with the advice provided to me by Makin. I have taken 9 October 2007 to be the relevant date for the purposes of section 643(10).
[10] On the information before me I am satisfied that Miss Gardner-Fluck is excluded from making an application under section 643(1)(a). Her application is dismissed accordingly. An Order [PR979919] giving effect to this decision will be issued.
BY THE COMMISSION:
SENIOR DEPUTY PRESIDENT
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