PR929767 PR929767 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.170CE application for relief re termination of employment Peter James Webb and Business Risks International Pty Limited ( No. 2003/732) SENIOR DEPUTY PRESIDENT DUNCAN SYDNEY, 31 MARCH 2003 Alleged harsh, unjust and unreasonable termination - jurisdiction. DECISION [1] On 20 January 2003 Mr P.J. Webb last worked as a casual security guard at the Sydney Opera House for Business Risks International Pty Limited. On 8 February Mr Webb lodged an application for relief in relation to termination of employment under s.170CE of the Workplace Relations Act 1996 (the Act). [2] The employer, in its appearance, claimed that Mr Webb's employment had not been terminated as alleged. This goes to jurisdiction and that came before the Commission as currently constituted on 28 March 2003. Section 170CE(1), the foundational section the base of the Commission's jurisdiction states: "(1) Subject to subsections (5) and (5A), an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment: (a) on the ground that the termination was harsh, unjust or unreasonable; or ( b) on the ground of an alleged contravention of section 170CK, 170CL, 170CM or 170CN; or (c) on any combination of grounds in paragraph (b) or on a ground or grounds in paragraph (b) and the ground in paragraph (a)." [3] Neither side was represented. [4] In short, the employers case was that Mr Webb had been employed as an on call casual with no regular or systematic roster and no certainty of a permanent roster. He had the right to decline offers of work. Details of hours worked were given which indicated that, over a year, hours were worked irregularly. It was stated that work had been offered to Mr Webb after 20 January 2003 but was declined. These offers were not for work at the Opera House. [5] Mr Webb, on the other hand, said that prior to 20 January he had a regular roster at the Opera House which in fact extended beyond the last day he worked. He detailed and denied complaints made to him about the performance of his duties. He insisted that he had been dismissed. [6] Mr Webb commenced employment with Business Risks International Pty Limited early in 2001. He had in excess of one year in employment. I accept that there was some regularity in his work in December/January just past but I do not think that his contract of employment changed. [7] The issue to be determined on this occasion remains did the respondent terminate Mr Webb's employment. I think not. There have been offers of work since the 20 January. They are not at the Opera House but there was nothing put forward which suggests they had to be limited to that institution. I am further satisfied that the relationship was casual and not regular, again I hold that the December/January experience did not alter the basis of the employment. So long as the employer keeps Mr Webb on its books and offers him work it can not be said to have terminated his employment. Section 170CE(1) is not satisfied. [8] For these reasons the Commission has no jurisdiction. The application is dismissed. BY THE COMMISSION: SENIOR DEPUTY PRESIDENT Appearances: The applicant in person. The respondent in person. Hearing details: 2003. Sydney: March 28. Printed by authority of the Commonwealth Government Printer <Price code B>