David Medlam v Salvation Army Whyalla

[2012] FWA 10638

[2012] FWA 10638

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Medlam
v
Salvation Army Whyalla
(U2012/14929)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 18 DECEMBER 2012

Termination of employment - jurisdiction - independent contractor - not a person protected from unfair dismissal.

[1] On 8 November 2012 Mr Medlam lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which he sought relief with respect to what he claimed was the termination of his employment with the Salvation Army, Whyalla.

[2] On 22 November 2012 the Salvation Army South Australia Property Trust trading as Salvos Stores lodged an objection to the application on the basis that Mr Medlam was not an employee and hence was not a person protected from unfair dismissal.

[3] This objection was the subject of a hearing in Adelaide on 18 December 2012 with a video-link to Mr Reid of the respondent (Salvos Stores) in Melbourne. A video-link for Mr Medlam in Whyalla was arranged but when Mr Medlam forgot to attend, arrangements were made for him to participate by telephone.

[4] Section 396 identifies four initial matters about which Fair Work Australia must be satisfied before considering the merits of an application made under s.394. The issue of whether Mr Medlam was a person protected from unfair dismissal was the only matter of contention in this respect.

[5] Section 382 states:

“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

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[6] Sections 380 and 11 establish that the term employee has its ordinary meaning.

[7] Salvos Stores asserted that Mr Medlam was not an employee but was an independent contractor. Salvos Stores provided an extensive submissions and material in support of its position. These submissions substantially relied on the approach adopted by a Full Bench of the Australian Industrial Relations Commission in Abdulla v Viewdaze Pty Ltd T/A Malta Travel. 1

[8] When the elements of a contracting arrangement as distinct from an employment arrangement were explained to Mr Medlam, he agreed that the arrangement under which he worked was that of an independent contractor. I do not understand there is any dispute about the Salvos Stores’ characterisation of Mr Medlam’s contractual arrangement and have concluded that he was indeed an independent contractor.

[9] Accordingly, Mr Medlam is not a person protected from unfair dismissal and is not able to pursue this application. His application is dismissed. An Order [PR532493] to this effect will be issued.

SENIOR DEPUTY PRESIDENT

Appearances:

D Medlam on his own behalf.

J Reid for the respondent.

Hearing details:

2012.

Adelaide (video-link to Melbourne);

December 18.

 1 (2003) 122 IR 215

Printed by authority of the Commonwealth Government Printer

<Price code A, PR532489>