DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Prossor
v
Melbourne Flight Training Pty Ltd
(U2018/5754)

COMMISSIONER MCKINNON

MELBOURNE, 20 NOVEMBER 2018

Application for an unfair dismissal remedy - whether employee or contractor.

Introduction

[1] David Prossor says he was employed by Melbourne Flight Training Pty Ltd (MFT) as a Flight Instructor from January 2007 until 16 May 2018 when he was directed to cease operations effective immediately.

[2] On 4 June 2018, Prossor applied to the Commission for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).Prossor says the dismissal was unfair because there was no valid reason for dismissal and he was denied procedural fairness.

[3] On 6 August 2018, MFT filed a response to the unfair dismissal application. It objects to the application because it says its arrangement with Prossor facilitated a lifestyle business for him and was not an employment relationship. 1 In the alternative, it says Prossor was a casual flying instructor and if he was dismissed, the dismissal was not unfair.

[4] The matter was conciliated on 5 September 2018 but not settled. After seeking the views of the parties, I held a determinative conference in the matter on 12 September 2018 in Melbourne. Prossor was represented by the Australian Federation of Air Pilots (AFAP). MFT was not represented.

[5] The issues for resolution are these:

1. Was Prossor an employee of MFT?

2. If yes, was Prossor dismissed, and when?

3. If Prossor was dismissed, was the dismissal unfair?

Was Prossor an employee of MFT?

[6] The meaning of the word “dismissed” is set out in section 386 of the Act. It refers broadly to a person having been dismissed from “employment”. The terms “employee” and “employer” are defined in section 12 of the Act, and for the purposes of unfair dismissal, mean respectively, a “national system employee” and a “national system employer” (see sections 380, 30C and 30D of the Act).

[7] Determiningwhether a person is an employee or a contractor requires the application of multifactorial tests established through the Courts and recently confirmed in Kimber v Western Auger Drilling Pty Ltd 2(Kimber).In Kimber, the Full Bench endorsed the approach in French Accent v Do Rozario3 (French Accent), which had regard to the earlier relevant authorities.4

[8] There is no dispute that immediately before 16 March 2018, Prossor was performing work from MFT’s premises as a flight instructor. Ultimately, the question is whether he was doing so as the servant of MFT in its business or while carrying on his own business.

Control over the manner in which work is performed, place of work, hours of work and the like.

[9] At the time their relationship came to an end on 16 May 2018, Prossor was working as a “casual” Grade One flight instructor for MFT. He decided which hours and days to work and worked variable hours and days, averaging approximately 2-4…

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: [2018] FWC 6961
Decision Date: 20 NOVEMBER 2018

CaseChat Overview and Summary

David Prossor filed an application for an unfair dismissal remedy against Melbourne Flight Training Pty Ltd. Prossor was employed as a flight instructor and sought a declaration that his dismissal was unfair. The company argued that Prossor was an independent contractor and not an employee, thereby negating the applicability of unfair dismissal provisions. The case was heard in the Fair Work Commission.

The primary legal issue before the court was to determine the true nature of Prossor’s employment relationship with Melbourne Flight Training Pty Ltd. This involved assessing whether Prossor was an employee or an independent contractor. Factors such as the degree of control exerted by the company over Prossor, the method of remuneration, and the nature of the work performed were considered. The court needed to decide if Prossor was entitled to unfair dismissal remedies under the Fair Work Act.

The Fair Work Commission found that Prossor was indeed an employee of Melbourne Flight Training Pty Ltd. The analysis focused on the degree of control exercised by the company over Prossor’s work, the provision of tools and equipment, and the nature of the contract. The court held that Prossor was subject to the company’s control and direction, which aligned more with an employment relationship than that of an independent contractor. Consequently, Prossor was granted an unfair dismissal remedy.

The Fair Work Commission ordered Melbourne Flight Training Pty Ltd to reinstate David Prossor to his former position and to pay compensation for the loss of wages and benefits from the date of dismissal to the date of reinstatement.

Orders