Larcombe and EBL Catering [2001] NSWIRComm 149

Larcombe and EBL Catering [2001] NSWIRComm 149

Although the applicant was a casual employee, her employment was not for a short period within s83(2)(c) of the Industrial Relations Act 1996. Even the final period exceeded five months in the casualised catering industry, and the circumstances showed continuity: breaks were only about three weeks, employment covered the industry's peaks and troughs, she was not required to be re-employed after breaks, there was only one employment declaration, and the respondent's letter treated her employment as continuous. The unfair dismissal application was therefore within jurisdiction.

Jurisdiction
Australia
Judgment Date
06 July 2001
Procedural Posture
Application Re Unfair Dismissal Pursuant to Section 84 of the Industrial Relations Act 1996 / Decision on Jurisdictional Objection as a Preliminary Matter
Outcome
Jurisdictional objection rejected; application held competently before the Commission.
Legal Topics
['unfair Dismissal' 'casual Employment' 'jurisdiction of the Commission' 'employees Engaged on a Casual Basis for a Short Period' 'reasonable Expectation of Continuing Employment']
['industrial Relations' 'employment Law'] ['unfair Dismissal' 'casual Employment' 'jurisdiction of the Commission' 'employees Engaged on a Casual Basis for a Short Period' 'reasonable Expectation of Continuing Employment']

Case Brief

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Procedural Posture

Application Re Unfair Dismissal Pursuant to Section 84 of the Industrial Relations Act 1996 / Decision on Jurisdictional Objection as a Preliminary Matter

Legal Issues

  1. 1 ['Whether the applicant was precluded by s83(2) of the Industrial Relations Act 1996 and reg 5B(1) from bringing an unfair dismissal application because she was a casual employee engaged for a short period.' "Whether the applicant's employment, although casual, was for a short period." "Whether the applicant's employment involved a continuing relationship or ongoing contract of employment."]

Ratio Decidendi

Although the applicant was a casual employee, her employment was not for a short period within s83(2)(c) of the Industrial Relations Act 1996. Even the final period exceeded five months in the casualised catering industry, and the circumstances showed continuity: breaks were only about three weeks, employment covered the industry's peaks and troughs, she was not required to be re-employed after breaks, there was only one employment declaration, and the respondent's letter treated her employment as continuous. The unfair dismissal application was therefore within jurisdiction.

Court Disposition

Jurisdictional objection rejected; application held competently before the Commission.

Orders

  • ['The application is competently before the Commission.' 'Further conciliation proceedings are listed for 10.00am on Friday, 20 July 2001.']