Hari Iyengar v Commonwealth of Australia Represented By Services Australia
[2022] FWC 2018
•29 JULY 2022
| [2022] FWC 2018 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Hari Iyengar
v
Commonwealth Of Australia Represented By Services Australia
(C2022/1438)
| COMMISSIONER P RYAN | SYDNEY, 29 JULY 2022 |
Application to deal with contraventions involving dismissal
This decision concerns an application by Mr Hari Iyengar (Applicant) to deal with a general protections dispute involving dismissal pursuant to s.365 of the Fair Work Act 2009 (FW Act). By the application, the Applicant alleges that his employment with the Commonwealth of Australia represented by Services Australia (Respondent) was terminated on 10 February 2022 in contravention of Part 3-1 of the Act.
In its Form F8A – Response to general protections application, the Respondent raised a jurisdictional objection on the grounds that the Applicant was not an employee and was not ‘dismissed’.
The Respondent stated that it had a contract with Hays Specialist Recruitment (Hays) under which Hays provides personnel to the Respondent in the form of labour hire services and the Applicant was one such personnel. The Respondent stated that it had no contractual or employment relationship with the personnel provided by Hays.
The Commission has jurisdiction to entertain an application to deal with a general protections dispute involving dismissal pursuant to s.365, only if the Applicant has been dismissed.[1]
In accordance with directions issued by my chambers, the parties filed the following materials:
Respondent: An outline of submissions;
A statement of David Reed, attaching correspondence from Hays;
Applicant: An outline of submissions;
A corporate entity contract between Hays and Sharai Projects Pty Ltd (Sharai);
Respondent: An outline of submissions in reply.
The matter was listed for hearing via Microsoft Teams on 7 June 2022. There was no appearance by the Applicant and, despite several attempts by my chambers, the Applicant could not be contacted. Mr S Misrachi appeared for the Respondent.
On 7 June 2022 and following the conclusion of the hearing, my chambers sent correspondence to the Applicant:
(i)seeking an explanation for his non-attendance; and
(ii)advising that I was intending to dismiss the application on the basis that he was not an employee of the Respondent and therefore could not be dismissed by the Respondent within the meaning of s.386 of the Act and inviting the Applicant to provide any further submissions in support of his opposition to the jurisdictional objection.
On 9 June 2022, the Applicant provided the following response:
I was on overseas holiday and had got locked out of email because of id [sic] issues. I have just returned today to see this email. I am sorry about not being able to attend and respond and a new date would be welcome.
On 15 June 2022, my chambers sent further correspondence to the Applicant inviting any further submissions in support of his opposition to the jurisdictional objection and requesting evidence in support of the explanation for his non-attendance at the hearing.
On 15 June 2022, the Applicant provided a further short written submission in relation to the jurisdictional objection and a copy of a document titled United States Customs and Border Protection Electronic System for Travel Authorization (ESTA) in support of the explanation for his non-attendance at the hearing. The ESTA document is undated and does not specify any period of travel.
In the absence of the Applicant providing satisfactory evidence supporting his contention that he was overseas, I have proceeded to determine the matter based on the materials filed, including the submission of the Applicant filed on 15 June 2022.
Factual Background
The Applicant is a director of Sharai.
On 30 January 2022, Hays and Sharai entered into a contract titled “Terms of Engagement - Corporate Entity Contractors – Victoria & Australian Capital Territory – Australia” (Contract)[2], whereby Hays would offer Sharai the opportunity to provide services to clients of Hays through assignments.[3]
The terms of the Contract provide, inter alia, that:
· Hays is under no obligation to provide Sharai with any assignment;[4]
· Sharai is not under any obligation to accept an assignment offered by Hays;[5]
· There may be periods when no suitable assignments are available;[6]
· If an assignment is accepted, Sharai must employ or engage the nominated person to perform the services.[7] Sharai’s nominated person is the Applicant;
· The nominated person is not an employee or contractor of Hays or any client of Hays;[8]
· There is no guarantee of any duration of length of an assignment and the client of Hays may vary or end a particular assignment in its absolute discretion;[9]
· Any agreed fees will be paid upon presentation of a tax invoice;[10] and
· The Contract constitutes the entire agreement between Hays and Sharai.[11]
On 31 January 2022, Sharai commenced an assignment with the Respondent (Assignment).
On 10 February 2022, the Respondent advised Hays that it was ending the Assignment.
On 26 February 2022, the Applicant filed the application with the Commission.
Relevant Legislative Provisions
Section 365 of the Act provides as follows:
‘365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.’
Section 12 of the Act, the dictionary, defines “dismissed” by reference to s.386 of the Act.
Section 386 of the Act provides as follows:
‘386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.’
As stated earlier, the Commission only has jurisdiction to entertain an application to deal with a general protections dispute involving dismissal pursuant to s.365, if the person has been dismissed.
In Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (Personnel Contracting) and ZG Operations Australia Pty Ltd v Jamsek (Jamsek)[12], the High Court held that where the contractual terms are entirely in writing, the rights and obligations established in the contract exclusively determine the relationship between the parties.[13]
The Contract, filed by the Applicant, sets out the terms and conditions entirely in writing between the two corporate entities, Hays and Sharai.
There was no suggestion by the Applicant that the Contract was a sham and the Applicant has not filed any evidence to support a finding that he was an employee of the Respondent. To the contrary, the Applicant readily acknowledged that he was an independent contractor in the directions hearing on 6 April 2022, in his submissions filed on 27 April 2022[14], and in his submissions filed on 15 June 2022.
Taking into consideration all of the materials before me, it is abundantly clear that the Applicant was not an employee of the Respondent, and therefore the Applicant is not a person who has been dismissed for the purposes of s.365 of the Act.[15]
Conclusion
The application is dismissed.
COMMISSIONER
2022.
Sydney (via Microsoft Teams video-link):
7 June.
<PR744351>
[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [67], [74]-[75].
[2] Digital Hearing Book (DHB) at p.35-40.
[3] Contract, clause 2.
[4] Contract, clause 3.2.
[5] Contract, clause 5.1.
[6] Contract, clause 3.1.
[7] Contract, clause 3.4.
[8] Contract, clause 3.5
[9] Contract, clause 3.6.
[10] Contract, clauses 4 and 6.
[11] Contract, clause 11.
[12] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2.
[13] Personnel Contract at [44] per Kiefel CJ, Keane and Edelman JJ and [162] per Gordon J; Jamsek at [8]-[9] per Kiefel CJ, Keane and Edelman JJ.
[14] DHB at Page 31 at [F].
[15] John Grass v NSW Chinese Tennis Association Inc[2021] FWCFB 3443 at [11]-[13].
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