The applicant, who had been employed by the respondent before her dismissal, filed an unfair dismissal claim before the Commission. Shortly thereafter, the representative for the respondent communicated to Registry that he believed the claim ought not be accepted, and that he was recording the conversation to discuss the matter on the radio. Subsequently, the respondent emailed the Commission to confirm he would not participate in proceedings and corresponded further later the same month. The Commission advised the respondent that his communications were threatening and inappropriate.

Once a conciliation conference was scheduled in the proceedings, the respondent informed the Commission that he was unable to attend. Given the communications received by the Commission and Registry from the respondent, the Commission formed the view that conciliation would not assist in resolving this matter and made orders that the parties file appropriate forms, including that the applicant file an amended application, and that the matter be listed for hearing. The applicant did not file the required amended application and did not respond to communication from the Commission in the leadup to the scheduled show cause hearing, nor did she appear at the show cause hearing.

Commissioner Walkington determined that the applicant had sufficient opportunity to demonstrate her desire to continue with her unfair dismissal application and had not done so. Additionally, the Commissioner considered that while the behaviour of the respondent had been uncooperative and sometimes aggressive, that his conduct did not negate the need for the applicant to progress her claim. Accordingly, the Commissioner found that the applicant had failed to prosecute her claim and dismissed the application.

The decision can be read here. 

The applicant, a Canteen Assistant, lodged a claim of unfair dismissal against the respondent employer. The respondent raised a jurisdictional objection to the application, contending that as the applicant was employed as a casual employee, she was not eligible to make the claim.

The applicant contended that she was unfairly dismissed and was not informed that she was employed on a casual basis. She claimed that her permanent work shifts were on Fridays during the school term and that she covered shifts for other staff when needed. The respondent, on the other hand, contended that all her staff, including the applicant, were employed as casuals under the same award and written employment contracts. The respondent argued that there was no firm advance commitment to ongoing work and that the applicant was aware of her casual status.

As there is no dismissal when the employment relationship between a casual employee and their employer ends in accordance with the terms of the contract, Commissioner Tsang reviewed the evidence to determine the nature of the employment relationship. The Commissioner heard evidence, including that the applicant was paid a casual loading, the nature of the employment relationship as having commenced to “fill the gap” left following the resignation of another employee, and that the written contract of employment described the nature of the employment relationship as casual.

Finding that the nature of the employment relationship was indeed casual, and that the employment relationship had ended in accordance with the terms of the contract, Commissioner Tsang determined that the Commission lacked jurisdiction to deal with the application, and accordingly it was dismissed.

The decision can be read here.