DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Darren Cooper
v
Creative Cuisine (Aust) Pty Ltd
(U2020/6806)

DEPUTY PRESIDENT LAKE

BRISBANE, 27 NOVEMBER 2020

Application for an unfair dismissal remedy – Jurisdictional objection – High income threshold – Employee or Independent Contractor – Jurisdiction objection upheld – Applicant found to be an independent contractor – Application dismissed.

Background

[1] On 29 April 2020, Mr Darren Cooper (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment with Creative Cuisine (Aust) Pty Ltd (the Respondent) on 5 May 2020 was unfair.

[2] The Respondent has raised two jurisdictional objections to the Applicant’s application proceeding on the basis that the Applicant was not a person protected from unfair dismissal at the time of his termination with the Respondent. The Respondent objects to the application on the basis that the Applicant is not an employee and that the Applicant earned more than the high income threshold.

[3] In response, the Applicant asserts that he was not a contractor, rather an employee of the Respondent. He also states that the Director of the Respondent business, Mr Rodger Graf, owns another business, Nutritious Cuisine. The Applicant asserts that as he was employed by both Creative Cuisine and Nutritious Cuisine, his income should be determined on the amount received by each business separately, rather than being considered together, which he believes would fall below the high income threshold.

[4] Both the Applicant and the Respondent agreed for the matter to be determined on the papers. The Applicant and Respondent filed submissions that were to be relied upon in relation to the jurisdictional objections.

[5] The jurisdictional objection of whether the Applicant was an employee will be determined first. For the reasons that follow, I am not satisfied that the Applicant was an employee. Because of this, there is not need to determine whether the Applicant fell below the high income threshold.

Jurisdictional Objection: Employee or Independent Contractor

Legislative Framework

[6] Before considering the merits of the application, the Fair Work Commission must decide whether the person was protected from unfair dismissal, as per s 396(b) of the Act.

[7] The definition of when a person is protected from unfair dismissal is found in s 382 of the Act and provides as follows:

“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…” [emphasis added]

[8] The meaning of “employee” in that provision is provided for in s 380 of the Act, as a “national system employee”; which is defined by s 13 of the Act to mean “…an individual so far as he or she is employed,…

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: [2020] FWC 6247
Decision Date: 27 NOVEMBER 2020

CaseChat Overview and Summary

The applicant, Darren Cooper, sought relief against his former employer, Creative Cuisine (Aust) Pty Ltd, in the Federal Circuit and Family Court of Australia, asserting that his dismissal was unjust. The dispute centred around Cooper's status as an employee versus an independent contractor and whether the court had the requisite jurisdiction given the financial threshold for such matters. The court was tasked with determining whether Cooper's dismissal constituted an unfair termination and, if so, whether the court had the authority to hear the case based on his income level and employment status.

The primary legal issues before the court were twofold: first, whether Cooper was an employee or an independent contractor, and second, whether the court had the jurisdiction to hear the matter due to Cooper's income exceeding the statutory threshold. The court had to examine the nature of Cooper's work, the control exerted by the employer, and the economic reality of their relationship. Additionally, it had to consider whether Cooper's income exceeded the jurisdictional limit and, if so, whether the case could still proceed in the Federal Circuit and Family Court of Australia.

In its decision, the court determined that Darren Cooper was an independent contractor rather than an employee. This conclusion was based on the nature of Cooper's work, the level of control exercised by Creative Cuisine, and the economic dependency between the parties. Given this finding, the court held that Cooper's income exceeded the jurisdictional threshold for unfair dismissal claims in the Federal Circuit and Family Court of Australia. Consequently, the court found itself without the necessary jurisdiction to hear the matter, leading to the dismissal of Cooper's application.

As a result of the jurisdictional objection being upheld and the finding that Cooper was an independent contractor, the Federal Circuit and Family Court of Australia dismissed the application for unfair dismissal remedy. The court's decision was grounded in the statutory jurisdictional limits and the determination of Cooper's employment status, which did not permit the court to proceed with the case.

Orders