Nassar & Kymtel Pty Limited t/a Mobile Gallery [2004] NSWIRComm 1009 (24 February 2004)

Last Updated: 19 March 2004

INDUSTRIAL RELATIONS COMMISSION

OF NEW SOUTH WALES

CORAM: CONNOR C

Tuesday, 24 February 2004

Matter No. IRC 17 of 2004

IN THE MATTER of a claim for relief to the dismissal of Tonna Nassar by Kymtel Pty Limited trading as Mobile Gallery.

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D E C I S I O N

Mrs Tonna Nassar was employed as a retail sales assistant with LA Enterprises, trading as Mobile Gallery. She commenced employment with it on Tuesday, 11 June, 2002. Mobile Gallery was taken over by Kymtel Pty Limited on Wednesday, 10 December, 2003. LA Enterprises has claimed that all employees, including Mrs Nassar, received their entitlements and were told that any future employment with Mobile Gallery would be a matter for Kymtel. On Thursday, 18 December, 2003 she and other staff members were informed that their positions were to be made casual. Mrs Nassar disputed that, claiming that her employment with Kymtel was initially part-time. She called in sick on Friday, 19 December, 2003 and was informed that she was not rostered on for the week beginning Monday, 22 December, 2003. Ultimately, her services were terminated effective from Thursday, 18 December, 2003. Mrs Nassar claimed that Kymtel have informed her that she resigned, which she denied.

Mrs Nassar has lodged an application under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act in which she has sought monetary compensation against Kymtel. The matter was allocated to me and it was the subject of a preliminary hearing before me on Tuesday, 24 February, 2004 in the Commission’s offices in 90 Crown Street, Wollongong. But there is a jurisdictional barrier to Mrs Nassar's claim.

If Mrs Nassar's brief period of employment with Kymtel was on a casual basis, as Kymtel asserted, Reg.6 operates to exclude:

"...employees engaged on a casual basis for a short period except employees who:

(i) are engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment during a period of at least six months; and

(ii) would, but for the dismissal, have had a reasonable expectation of continuing employment with the employer..."

What constitutes a "short period" of casual employment is not defined and in Shop, Distributive and Allied Employees Association v. Librus Pty Limited (2001) 103 IR 390 the Full Bench of the Commission (Walton J - Vice President, Hungerford J, Patterson C) rejected the view that a casual employee with less than six months of employment would automatically be excluded from making an application under Part 6 by the operation of Reg.6. Nevertheless, I am satisfied that a week of casual employment by Mrs Nassar with Kymtel, without any regular pattern of employment being established and without any reasonable expectation of the continuation of the employment, would certainly be excluded by Reg.6.

Even if Mrs Nassar retained her part-time work with Kymtel, the maximum amount of remuneration available to her from Kymtel by virtue of S.89(5) would undermine any possible claim. In terms of S.89(5) the amount of remuneration is restricted to "...an amount of remuneration of the applicant at the average rate received over the six months immediately before being dismissed...", ie in this case five days. That position was confirmed by the Full Bench of the Commission (Fisher J - President, Hungerford J and McKenna CC) in its unreported decision of Wednesday, 30 March, 1994 in Bateman v. Royal Alexandra Hospital for Children [Matter No. IRC 2865 of 1993 at pp.4 and 5].

In those circumstances, Mrs Nassar has withdrawn her Part 6 application. I propose to grant her leave for the discontinuance of the matter in accordance with Rule 138. And if Mrs Nassar claims that she has some unpaid entitlements, that is a matter she must take up, in the first instance, with LA Enterprises - and later, if necessary with Kymtel in accordance with the transmission of business provisions of Part 8, Protection of Entitlements on Transfer of Business [Ss.101 to 104] - but Mrs Nassar must appreciate that untaken sick leave, which she claims as an entitlement in her Part 6 application, is not available to her as a payment upon termination.

P J CONNOR

Commissioner