DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Darcy Constantine
v
Minda Incorporated T/A Minda
(U2019/1890)

COMMISSIONER PLATT

ADELAIDE, 11 JUNE 2019

Application for an unfair dismissal remedy – jurisdictional objection – minimum employment period – contractor or employee – held not an employee for 6 months prior to dismissal –applicant not protected from unfair dismissal – application dismissed.

Summary

[1] On 21 February 2019 Mr Darcy Constantine lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by his former employer Minda Incorporated T/A Minda (Minda) which took effect on 5 February 2019.

[2] On 5 December 2018, SA Group Enterprises (a wholly owned subsidiary of Minda) filed a Form F3 Employer Response which raised a jurisdictional objection on the basis that Mr Constantine had not completed the minimum employment period (MEP).

[3] The matter did not resolve at Conciliation and was allocated to my Chambers on 27 March 2019.

[4] Directions for the filing of material and the date of the Hearing were issued on 2 April 2019. The Hearing was conducted on 6 and 7 May 2019.

[5] Mr Wright represented Mr Constantine and Ms Hii represented Minda. Permission was granted under s.596(2) of the Act.

[6] The matters that were not in dispute are summarised as follows:

• SA Group Enterprises (SAGE) is an associated entity of Minda.

• Minda employs about 600 persons.

• SAGE was tasked to open a new staff/public café (Café Inc.) on the Minda North Brighton site which replaced the previous staff cafeteria (Isabel’s Café).

• In September 2017 SAGE engaged Mr Constantine as a contractor on the Café Inc Project. Mr Constantine submitted invoices for payment based on an hourly rate.

• On 6 August 2019 Mr Constantine commenced employment with SAGE. A written contract of employment was executed.

• On 5 February 2019 (prior to the completion of the rostered hours of work for the day) SAGE advised Mr Constantine orally and in writing that he was dismissed and that his notice (12 weeks) would be paid in lieu.

• The applicable MEP is six months.

• If the MEP is met then Mr Constantine will be protected from unfair dismissal.

[7] The issues in dispute in this matter are as follows:

• Mr Constantine contends by attending work on the 5^th February 2019 he completed the MEP. Minda contends that Mr Constantine’s MEP concluded “immediately before” the 6 February 2019 and that Mr Constantine was not employed at that time.

• In the alternative, Mr Constantine contends that between May and August 2018, his relationship with Minda changed from a contractor to that of an employee and that if this change occurred prior to 6 August 2018 he will have completed the MEP.

[8] Witness statements in support of the Applicant were received from Mr Constantine, Mr Marcello Paola (Barista) 1 and Mr Craig Shearer (Trainee Barista).2 Mr Constantine gave…

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 Darcy Constantine v Minda Incorporated T/A Minda

Details

AGLC: Darcy Constantine v Minda Incorporated T/A Minda [2019] FWC 3929
Case: [2019] FWC 3929
Decision Date: 11 JUNE 2019

CaseChat Overview and Summary

The case of Darcy Constantine v Minda Incorporated T/A Minda was heard in the Fair Work Commission. The applicant, Mr Constantine, sought a remedy for unfair dismissal against his former employer, Minda Incorporated. The dispute centred on whether Mr Constantine was an employee protected from unfair dismissal under the Fair Work Act 2009.

The central legal issue was whether Mr Constantine had completed the minimum six-month employment period necessary to be eligible for unfair dismissal protection. A secondary issue was whether Mr Constantine was an employee or an independent contractor. The court examined the nature of Mr Constantine’s engagement, including the terms of his agreement, the level of control exerted by Minda Incorporated over his work, and the economic reality of the relationship between the parties.

The Fair Work Commission found that Mr Constantine had not been an employee for the requisite six months prior to his dismissal, as his employment was terminated shortly after the six-month period began. Additionally, the Commission determined that Mr Constantine was an independent contractor rather than an employee, due to the terms of his engagement and the nature of the work performed. Consequently, the application for an unfair dismissal remedy was dismissed as Mr Constantine did not meet the eligibility criteria under the Fair Work Act.

No further orders were made by the Commission beyond the dismissal of Mr Constantine's application.

Orders