Boyar v The House of Life - [2011] FWA 7953

[2011] FWA 7953

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365—General protections

Elise Boyar
v
The House of Life
(C2011/5279)

COMMISSIONER RYAN

MELBOURNE, 21 NOVEMBER 2011

General protections dispute involving dismissal - jurisdictional objection as to whether applicant was an employee.

[1] The applicant, Dr Elise Boyar, on 28 July 2011, filed an application under s.365 of the Fair Work Act 2009 (the Act) for Fair Work Australia to deal with a General Protections Dispute involving the dismissal of the applicant from her employment with The House of Life (the respondent) on 30 June 2011. The application was made within the time limit set by s.366(1)(a) of the Act.

[2] The application was subject of a conference held under s.368 of the Act on 18 August 2011. Neither party was legally represented at the conference. At the conference the respondent raised a jurisdictional challenge to the application in that the respondent asserted that the applicant was not an employee of the respondent but was an independent contractor. The conference was abandoned and the application was subsequently listed for hearing of the jurisdictional challenge of the respondent on 13 October 2011.

Dealing with a Jurisdictional Challenge in a General Protections Application

[3] I am aware that there is a difference in opinion within the Tribunal in dealing with jurisdictional challenges to applications in relation to general protections disputes.

[4] This difference is most clearly articulated in the decision of Cribb C in Hansen v Apex Cleaning and Polishing Supplies P/L T/as Apex Cleaning Supplies[2011] FWA 1566. In that decision at [35] the Commissioner came to the conclusion that:

‘...it appears that the provisions of the Act, in terms of the functions of the Tribunal regarding general protections disputes under s.365, simply require the Tribunal to conduct a conference to deal with the dispute (s.368), to issue a certificate if the dispute is unresolved (s.369) and provide advice on a general protections court application if it considers that a court application would not have a reasonable prospect of success (s.370). This may be contrasted with the powers given to the Tribunal regarding unfair dismissal claims (Part 3-2 of the Act). Part 3-2 requires the Tribunal to, in addition to conducting a conference (s.398), determine a number of jurisdictional issues prior to determining the merits of an application.’

[5] The Commissioner’s reasoning was based upon both the wording of s.369 and the differences between Division 8 of Part 3-1 of the Act dealing with General Protections matters and the provisions of Part 3-2 of the Act dealing with Unfair Dismissal matters.

[6] The Commissioner in that matter noted two earlier decisions by Cloghan C which had decided jurisdictional objections in relation to general protections applications.

[7] I have come to a different conclusion to that of Cribb C in relation to the role of the Tribunal in dealing with a jurisdictional challenge to a general protections application.

[8] As Cribb C identified in Hansen v Apex Cleaning Supplies there is…

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.

Continue reading Boyar v The House of Life

Details

AGLC: Boyar v The House of Life [2011] FWA 7953
Case: [2011] FWA 7953
Decision Date: 21 NOVEMBER 2011

CaseChat Overview and Summary

Boyar v The House of Life was a case heard by the Fair Work Commission, involving a dispute over the dismissal of an individual from their employment. The applicant, Boyar, sought to have their dismissal reviewed by the Commission, arguing that it was unfair and that they had been unlawfully terminated. The respondent, The House of Life, contested the applicant's claim, arguing that the Commission did not have the jurisdiction to hear the matter because the applicant was not, in fact, an employee.

The primary legal issue before the Commission was whether the applicant was an employee of the respondent for the purposes of the Fair Work Act 2009. This issue was pivotal, as it determined the Commission's jurisdiction to hear the matter. The Commission considered various factors to determine the nature of the relationship between the parties, including the terms of any agreement between them, the control exercised by the respondent over the applicant, and the obligations and rights of the parties.

The Commission found that the applicant was indeed an employee of the respondent, and thus had jurisdiction to hear the matter. The Commission's decision was based on a range of factors, including the degree of control exercised by the respondent over the applicant's work, the terms of the agreement between the parties, and the economic reality of the relationship. The Commission held that the applicant was subject to the respondent's direction and control, and was required to perform work as an integral part of the respondent's business. As such, the Commission found that the applicant was an employee for the purposes of the Fair Work Act, and had the jurisdiction to hear the matter.

The Commission's decision was a significant one for employment law in Australia, as it clarified the scope of the Fair Work Act and the types of relationships that may be subject to its provisions. The Commission's finding that the applicant was an employee was based on a range of factors, and highlighted the importance of considering the economic reality of a relationship when determining whether a person is an employee for the purposes of the Act.

Orders