Cameron Robertson v Hastings Deering - [2025] FWC 1302

[2025] FWC 1302

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Cameron Robertson
v

Hastings Deering

(U2025/554)

DEPUTY PRESIDENT LAKE

BRISBANE, 26 JUNE 2025

Application for an unfair dismissal remedy – jurisdictional objection – not an employee – whether a contract exists – labour hire worker – no contract – jurisdictional objection upheld – application dismissed

Mr Cameron Robertson (the Applicant) brought an application to the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) stating that he was unfairly dismissed from Hastings Deering (the Respondent).

The Respondent raised a jurisdictional objection that the Applicant was not an employee of the Respondent, and he was instead an employee of a related entity, Haynes Mechanical Pty Ltd (Haynes). To consider the merits of the Application, the Commission must determine whether the Applicant was a person protected from unfair dismissal under s.396 of the Act.

Directions were issued and a hearing was held on 19 March 2025 and 27 March 2025. The Applicant was self-represented, and Mr James Christensen from McInnes Wilson Lawyers appeared on behalf of the Respondent. Representation was granted to the Respondent for the purposes of efficiency, given the legal complexity arising from identifying elements of a contract and the indicia for determining an employment relationship.

Is the Applicant an employee of the Respondent?

The Applicant argued that he had been told that he would be able to be a permanent employee of the Respondent in the future. He states that he was interviewed at Hastings Deering by the workshop manager and following drug and alcohol test and fitness for work tests, he underwent the Hastings Deering induction. He commenced working at the Respondent’s workshop and stated that he had good feedback on his work performance. After six months in the role, the Applicant states that he asked about being made permanent and was not given an answer. He claims he was terminated by Hastings Deering.

The Applicant lodged an unfair dismissal application on 16 January 2025 naming the Respondent as Hasting Deering and alleging he had been dismissed by them on the 15 January 2025. On the 30 January 2025, Ms Riemer of Haynes advised the Commission that Haynes, not the Respondent, was the Applicant’s employer. The Applicant chose not to discontinue his application and lodge a new application naming Haynes as his employer.

On 5 February 2025, the Respondent filed a Form F3 and stated that the Applicant was not an employee and had never been employed by them in the past and that in order to pursue an application under section 394 of the Act, the Applicant must: (a) have completed the “minimum employment period” with their employer (b) have been “dismissed” by their employer.

There are two sub-issues arising from the Respondent’s jurisdiction objection that the Applicant is not an employee of the Respondent. One follows the other. Firstly, whether there is contract between the Applicants and…

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 1302
Decision Date: 26 JUNE 2025

CaseChat Overview and Summary

Cameron Robertson brought an application to the Fair Work Commission seeking a remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Hastings Deering raised a jurisdictional objection, contending that Mr Robertson was not an employee of Hastings Deering but rather an employee of Haynes Mechanical Pty Ltd, a related entity. The Commission needed to determine whether Mr Robertson was a person protected from unfair dismissal under s.396 of the Act. The Applicant argued he had been told that he would be able to be a permanent employee of Hastings Deering in the future. However, the evidence showed that Haynes Mechanical Pty Ltd was the Applicant’s employer, not Hastings Deering. The Commission found there was no contract in existence between the Applicant and Hastings Deering. There was no intention to create legal relations, no offer and acceptance, and no consideration. Accordingly, the Applicant was not employed by Hastings Deering. Having found that no contract exists, it was not necessary to reach a conclusion on whether the relationship was, in practice, an employment relationship. The jurisdictional objection was upheld and the unfair dismissal application was dismissed.

Orders