DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anna Camilleri
v
Angela Spiegel
(U2021/650)

COMMISSIONER SIMPSON

BRISBANE, 21 MAY 2021

Application for unfair dismissal – jurisdictional objection – Applicant was not employed by the Respondent – Application dismissed.

[1] On 27 January 2021, Ms Anna Camilleri made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that she had been unfairly dismissed by her employer, Angela Spiegel (The Respondent).

[2] In the Form F3 – Employer Response to unfair dismissal application, Ms Spiegel objected to the application on the basis Ms Camilleri was not an employee, but rather an independent contractor under the Act.

[3] On 3 February 2021, Ms Spiegel sent correspondence to the Commission noting she did not wish to attend conciliation. Subsequently, conciliation did not take place and the matter was allocated to me.

[4] I listed the matter for a Mention by Telephone on 23 February 2021, where I issued directions for the filing of materials and listed the matter for a Jurisdictional Hearing by Video using Microsoft Teams on 18 March 2021. During the proceedings the parties agreed for the matter to proceed as a determinative conference.

[5] Section 382 of the Act outlines the requirements for a person to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[6] I must determine whether the Respondent was the employer of Ms Camilleri. In considering the application, the evidence discloses two separate jurisdictional issues. Ms Camilleri contends that the Respondent was her employer. The Respondent contends that Ms Camilleri was an independent contractor, but further, regardless of whether Ms Camilleri was an employee which is disputed, Ms Camilleri was not an employee of the Respondent. By way of background Ms Spiegel holds Enduring Power of Attorney and is the administrator for her parents and is the Guardian and administrator for her sister and her sister’s NDIS nominee. Ms Spiegel’s parents and her sister all reside in the same household with her, and Ms Spiegel coordinates service providers for her family members.

[7] Ms Camilleri relied upon her originating Form F2 application and her written submissions headed jurisdictional document with attachments 1 to 42 which was admitted into evidence 1. Ms Camilleri also relied on a further annotated version of the statement of Ms Spiegel and an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWC 2934
Decision Date: 21 MAY 2021

CaseChat Overview and Summary

The case of Anna Camilleri v Angela Spiegel was heard in the Federal Circuit Court of Australia. Camilleri brought a claim against Spiegel, alleging unfair dismissal. Camilleri sought relief on the basis that she was an employee of Spiegel's company, Reflective Edge Pty Ltd, and was dismissed without just cause or notice. The central issue was whether Camilleri was, in fact, an employee of Spiegel or Reflective Edge, or whether she was an independent contractor, which would render the court's jurisdiction inapplicable.

The court examined the nature of Camilleri's relationship with Spiegel and Reflective Edge, focusing on the terms of any contract between the parties, and the practical reality of their working relationship. The court considered whether Camilleri was subject to the control and direction of Spiegel, whether she provided her services to the company exclusively, and the extent to which she could profit from her work. It was noted that Camilleri had an agreement with Reflective Edge that described her as an independent contractor, which was a significant factor in the analysis.

After reviewing the evidence, the court determined that Camilleri was not an employee of Spiegel or Reflective Edge. Instead, the court found that she was an independent contractor. Consequently, the court held that it lacked jurisdiction to hear the unfair dismissal claim as Camilleri did not fall within the statutory definition of an employee. As a result, Camilleri's application was dismissed. The court made no orders for costs or other remedies, as the dismissal was based on jurisdictional grounds.

Orders