Barry Colllett v Suncoastbricklayers - [2025] FWC 1040

[2025] FWC 1040

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Barry Colllett
v

Suncoastbricklayers

(C2025/1372)

COMMISSIONER SIMPSON

BRISBANE, 14 APRIL 2025

Application to deal with contraventions involving dismissal - Application dismissed.

On 20 February 2025, Mr Barry Colllett (Mr Collett / the Applicant) applied to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (Cth) (the Act) for an application to deal with a general protections dispute involving dismissal. The Respondent in the matter was named as Suncoastbricklayers (the Respondent). The Applicant and the Respondent’s name appear to have been misspelled on the application. The Applicant’s name appears to be Mr Collett and the Respondent’s name is Suncoast Bricklaying Pty Ltd.

The Respondent raised jurisdictional objections that the Applicant was not an employee and was not dismissed.

On 10 March 2025, I issued a Notice of Listing and Directions to the parties regarding the jurisdictional objection. The Applicant did not file submissions in accordance with the directions on 25 March 2025. I therefore proposed to the parties that the matter be determined on the papers based on the material filed. No objection was received.

No witness statements were filed for either party. The Applicant relied on his Form F8 application, and the Respondent relied on the Form F8A Response and their submissions.

Relevant Legislation

Sections 15 and 15AA of the Act, relevantly state:

“15 Ordinary meanings of employee and employer

(1) A reference in this Act to an employee with its ordinary meaning:
(a) includes a reference to a person who is usually such an employee; and
(b) does not include a person on a vocational placement.

Note: Subsections 30E(1) and 30P(1) extend the meaning of employee in relation to a referring State.

(2) A reference in this Act to an employer with its ordinary meaning includes a reference to a person who is usually such an employer.

Note: Subsections 30E(2) and 30P(2) extend the meaning of employer in relation to a referring State.

15AA Determining the ordinary meanings of employee and employer

(1)For the purposes of this Act, whether an individual is an employee of a person within the ordinary meaning of that expression, or whether a person is an employer of an individual within the ordinary meaning of that expression, is to be determined by ascertaining the real substance, practical reality and true natureof the relationship between the individual and the person.

(2)For the purposes of ascertaining the real substance, practical reality and true nature of the relationship between the individual and the person:
(a) the totality of the relationship between the individual and the person must be considered; and
(b) in considering the totality of the relationship between the individual and the person, regard must be had not only to the terms of the contract governing the relationship, but also to other factors relating to the totality of the relationship including, but not limited to, how the contract is performed in…

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: [2025] FWC 1040
Decision Date: 14 APRIL 2025

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by Barry Collett (the Applicant) against Suncoast Bricklaying Pty Ltd (the Respondent) for an application to deal with a general protections dispute involving dismissal. The Respondent raised jurisdictional objections to the application, arguing that the Applicant was not an employee and was not dismissed. The Applicant did not file any submissions in response to the Respondent's submissions or to the directions issued by the Commission. The Commission was required to decide whether it had jurisdiction to hear the matter, based on whether the Applicant was an employee and whether there was a dismissal.

The Commission considered the evidence and submissions filed by the parties, including the Form F8 application and Form F8A Response, and determined that the Applicant was not an employee of the Respondent, but rather a casual contractor. The Commission found that the Applicant had worked for the Respondent on a sporadic basis between October 2024 and January 2025, and that there was no ongoing employment relationship between the parties. The Commission also found that there was no dismissal, as the working relationship effectively ceased when the Applicant failed to respond to multiple inquiries regarding his availability for work. The Commission concluded that, even if the Applicant was an employee, he was not dismissed within the meaning of the Fair Work Act 2009 (Cth).

The Commission dismissed the application for want of jurisdiction, as it was not satisfied that the Applicant was an employee or that there was a dismissal. The Commission noted that a contractor cannot be dismissed, within the meaning of the Act, and that the material filed did not support a conclusion that the relationship, whether it was contracting or employment, was ended at the initiative of the Respondent. The Commission issued an order dismissing the application and noted that the Applicant had not responded to correspondence from the Commission's Chambers outlining the process for the Applicant to file submissions or withdraw the application. The Commission issued a decision on the jurisdictional objections, finding that the application was dismissed for want of jurisdiction.

Orders