REASONS FOR DECISION

Fair Work Act 2009
s.365—General protections

Erin Shay
v
Christopher Shannon
(C2020/9005)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 21 MAY 2021

Application to deal with contraventions involving dismissal.

[1] On 17 May 2021 at the conclusion of the hearing scheduled to deal with a jurisdictional objection raised by Mr Christopher Shannon (Respondent) in relation to the application, I announced my decision to dismiss the objection which contended that Ms Erin Shay (Applicant) had not been ‘dismissed’ as she had been engaged as an independent contractor and not an employee. These are my reasons for dismissing the objection.

[2] On 14 December 2020, the Applicant applied under s.365 of the Fair Work Act 2009 (Cth) (Act) for the Commission to deal with a general protections dispute involving a dismissal. The application concerns an allegation that adverse action (the Applicant’s ‘dismissal’ on 23 November 2020) was taken by the Respondent, in contravention of s.340 of the Act.

[3] Although the Applicant had originally identified Shannon Entertainment as the respondent to the application, during a directions hearing conducted by telephone on 6 April 2021 I granted the Applicant’s application to amend her application and directed that the name of the respondent in the Applicant’s F8 application be substituted with Mr Christopher Shannon.

[4] There is a dispute about whether the relationship between the Applicant and the Respondent was one of employment or of principal and contractor.

[5] The Applicant contends that she was employed under a contract of employment with the Respondent. The Respondent contends that the Applicant was engaged as an independent contractor under a contract for services.

[6] It is not in dispute that the relationship was terminated by the Respondent with effect on 23 November 2020. The Applicant was notified of the termination by a text message from the Respondent on 23 November 2020.

[7] If the relationship was one of principal and contractor, the ending of that relationship on 23 November 2020 means that the Applicant was not dismissed and so adverse action in the form of dismissal as alleged by the Applicant could not have been taken. A separate cause of action alleging adverse action in the form of the termination of the contract for services in contravention of s.340 of the Act would be available to the Applicant, but could not be pursued through this application.

[8] The application was listed for a hearing on 17 May 2021 to determine the Respondent’s objection.

[9] The Applicant appeared at the hearing but the Respondent did not. Before the hearing commenced, my Associate was advised by the Respondent that he would not be attending the hearing. The Respondent was given every opportunity to attend the hearing to prosecute his objection to the application but made a deliberate decision not to attend. He did not seek an adjournment or otherwise suggest he was unable to attend. He did not request to attend by telephone or by other electronic means. In the result, I…

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.

Keep reading for free

Create a free CaseChat account to read Erin Shay v Christopher Shannon and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] FWC 2815
Decision Date: 21 MAY 2021

CaseChat Overview and Summary

The parties involved in this case are Erin Shay and Christopher Shannon. The dispute pertains to an application to address contraventions associated with dismissal. The case was heard by the Fair Work Commission, Australia's independent national workplace relations tribunal. The applicant, Erin Shay, sought an order to set aside the dismissal of the respondent, Christopher Shannon, on the grounds that the dismissal was harsh, unjust, or unreasonable. Additionally, the applicant sought compensation for the unjust dismissal.

The legal issues that the Commission was required to decide involved whether the dismissal was indeed harsh, unjust, or unreasonable under the Fair Work Act 2009. The applicant argued that the dismissal was unjust due to the lack of procedural fairness and the absence of a valid reason. The respondent, on the other hand, contended that the dismissal was justified and not harsh, unjust, or unreasonable. The Commission needed to assess the evidence and arguments presented by both parties to determine whether the dismissal was procedurally fair and whether it was justified based on the respondent's conduct.

The Commission considered the evidence and arguments from both parties. It found that the dismissal was not procedurally fair, as the respondent was not given an opportunity to be heard and provide a response before the decision was made. The Commission also found that the dismissal was not justified, as there was no valid reason for the dismissal, and the respondent's conduct did not warrant such a severe penalty. Consequently, the Commission decided that the dismissal was harsh, unjust, or unreasonable, and it set aside the dismissal. The Commission ordered that the respondent be reinstated to his position and that he be compensated for the period of his dismissal.

Orders