DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gerrard Bennett
v
EFEX Group Pty Ltd
(U2019/13355)

COMMISSIONER HAMPTON

ADELAIDE, 2 JULY 2020

Application for an unfair dismissal remedy – jurisdictional objection – business development manager with sales role – whether an employee – required approach identified – multifactorial test applied – relationship stated to be that of an independent contractor – no written contract and superficial discussions only about nature and terms of engagement – various competing considerations arising from practical conduct of relationship – more significant factors consistent with employment – on balance, applicant an employee – jurisdictional objection dismissed – application to be heard.

1. What this decision is about

[1] Mr Gerrard Bennett has made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (the FW Act) claiming to have been unfairly dismissed by the Respondent, EFEX Group Pty Ltd (EFEX).

[2] In opposing the application, EFEX contests Mr Bennett’s eligibility to make this application and contends that he was not a person protected from unfair dismissal on the basis that he was not an employee.

[3] EFEX conducts a services business providing voice, data, printing management and other technology-based services. It has a strong presence in Eastern Australia and an office in Adelaide, where Mr Bennett was based.

[4] Mr Bennett was engaged to undertake what was fundamentally a sales role in the stated capacity as a Business Development Manager with EFEX. He did so from February 2018 to November 2019.

[5] It is not in dispute that for Mr Bennett to make and advance this application, he must have been an employee within the contemplation of the FW Act. This arises from, amongst other sources, the requirement in s.382 that in order to be protected from unfair dismissal, the person (the applicant) must be an employee who has served at least the minimum employment period. Under s.380 of the FW Act the terms “employee” and “employer” are defined by reference to the concepts of national system employee and national system employer as defined in s.13 and s.14 respectively.

[6] Relevantly for present purposes, employee has its normal meaning which imports the common law test as to what constitutes an employee and employment.¹

[7] After conducting a conference with the parties and considering the jurisdictional question to be determined and the evidence involved, I concluded that a hearing would be the most effective and efficient way to resolve this matter.² This hearing was delayed because of the impact of the COVID-19 pandemic and the control responses of the Governments and ultimately conducted by utilising a video-based conferencing platform.

[8] During the course of earlier proceedings permission was given to both parties to be represented in this matter by a Lawyer under s.596 of the FW Act.

[9] This decision deals with the jurisdiction of the Commission to hear and determine the substantive unfair dismissal application.

2. The cases presented by the…

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 Gerrard Bennett v Efex Group Pty Ltd

Details

AGLC: Gerrard Bennett v Efex Group Pty Ltd [2020] FWC 2503
Case: [2020] FWC 2503
Decision Date: 2 JULY 2020

CaseChat Overview and Summary

The applicant in this case, Gerrard Bennett, has applied to the Federal Circuit and Family Court of Australia for a remedy in respect of an alleged unfair dismissal by the respondent, Efex Group Pty Ltd. The applicant contends that he was dismissed without a fair process and that he was an employee of the respondent, contrary to the respondent's position that the relationship was that of an independent contractor. The central legal issue before the Court was whether the applicant was an employee of the respondent for the purposes of the Fair Work Act 2009. The Court applied the multifactorial test to determine the nature of the relationship, considering various factors such as the degree of control, the method of payment, and the nature of the work. Although the respondent argued that the applicant was an independent contractor, the Court found that the more significant factors were consistent with an employment relationship. Consequently, the Court held that the applicant was an employee of the respondent and dismissed the jurisdictional objection. As a result, the application will proceed to be heard on its merits.

Orders