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[2009] AIRC 70
defendant. Application dismissed and struck out for want of jurisdiction
1 cited instrument linked from this judgment.
The Australian Industrial Relations Commission dismissed an unfair dismissal application because the worker was a casual employee who had worked for less than six months. Under the Workplace Relations Act 1996, casual employees engaged for short periods were excluded from unfair dismissal protections, and even if they weren't, the worker hadn't completed the required six-month qualifying period. The worker had only been engaged six times (working four) over about three weeks.
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s.643 - Application for relief re (Harsh, Unjust or Unreasonable) termination of employment
Termination of employment - jurisdiction - casual employee
[1] This decision (now edited) was given on transcript, in Melbourne on 19 January 2009:
'I note in relation to the applicant's form R27 that she's indicated that she first worked for the employer on 23 October 2008 and last work for the employer on 10 November 2008. This also raises the question before the Commission as to the question of the qualifying period and that would also place the application beyond jurisdiction in my view. I intend to give a decision from the bench in relation to this matter. (PN7)
An application has been made pursuant to section 643 of the Act by Ms Holly de Vries who sought relief following her alleged termination of employment by Donwood Community Aged Care Services on 12 November 2008. Ms Williams, who appeared for the respondent in these proceedings, has provided sufficient submissions in my view that establishes that this applicant was only engaged to work on six occasions, in fact worked on four of those occasions, was engaged as a casual employee and paid as such. (PN8)
Under section 638 of the Act, in particular subsection (1)(d) it indicates that a casual employee engaged for a short period within the meaning of the Act is excluded from the operation of subdivisions (b), (d) and (e) of sections 660 and 661 of the Act. (PN9)
On that basis I am satisfied that the objection has been made out. There is no jurisdiction to deal with this application either on the basis that the employment was of a casual nature as defined in the Act, or in fact that even if that wasn't the case, that the qualifying period would also have application in relation to this matter and, as the employment period was less than six months, there's no jurisdiction. (PN10)
Accordingly, I intend to dismiss the application, have it struck out.' (PN11)
[2] An order giving effect to this decision will be issued.
Ms Fran Williams, Service Industry Advisory Group, for the respondent
Printed by authority of the Commonwealth Government Printer
Holly de Vries
Donwood Community Aged Care Services [2009] AIRC 70;
Application dismissed and struck out for want of jurisdiction