Harrison Pye v Soccer X Pty Ltd - [2023] FWC 2288

[2023] FWC 2288

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Harrison Pye
v

Soccer X Pty Ltd

(C2023/3594)

DEPUTY PRESIDENT DOBSON

BRISBANE, 8 SEPTEMBER 2023

Application to deal with contraventions involving dismissal – jurisdictional objection by Respondents –– independent contractor – no written contract in place – jurisdictional objection upheld – application dismissed.

Background

Mr Harrison Pye (the Applicant) lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute in relation to the alleged termination of his employment. The Application named Samuel (Ryan Michael) Smith as the Respondent and was filed in the Commission on 20 June 2023. On 11 August 2023, Commissioner Durham issued an order pursuant to s.586(a) of the Act, amending the Respondent to SOCCER X PTY LTD.

Directions were issued for the filing of material on 14 August 2023 and 23 August 2023, the matter was listed for hearing on 5 September 2023. The Application was initially allocated to Commissioner Durham and on 24 August 2023, the matter was allocated to me. Commissioner Durham’s directions were not disturbed by the reallocation of the file and this was communicated to the parties.

The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford[1] requires the Commission to determine a dispute about the fact of a dismissal under section 365 of the Act, before the Commission can exercise powers conferred by section 368.[2] It is thus necessary to determine the jurisdictional objection in order for the Applicant’s application to proceed further.

The Applicant was engaged by the Respondent to perform the duties of a soccer coach in schools commencing on 24 April 2023. The Respondent raised a jurisdictional objection that the Applicant was engaged as an independent contractor and not as an employee[3] and therefore he could not have been dismissed within the meaning of s.365 of the Act where no employment relationship existed.

Legislation

Section 365 of the FW Act provides:

“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 365 requires a dismissal to have occurred as a jurisdictional fact. A mere allegation that a person has been dismissed will not establish this as fact. “Dismissal” for these purposes (and other purposes of the Act) is defined in section 386(1), which provides:

“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…

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: [2023] FWC 2288
Decision Date: 8 SEPTEMBER 2023

CaseChat Overview and Summary

In the matter of Harrison Pye v Soccer X Pty Ltd, the Fair Work Commission was tasked with determining whether Mr Pye, who had brought an application under section 365 of the Fair Work Act 2009, had been dismissed by Soccer X Pty Ltd. The central issue was whether Mr Pye was an employee or an independent contractor, a determination crucial for the applicability of the dismissal provisions in the Act. Mr Pye claimed he was dismissed, while Soccer X Pty Ltd argued he was a contractor and therefore not eligible for dismissal protections.

The court examined the nature of the relationship between the parties, focusing on whether Mr Pye was an independent contractor or an employee. This involved assessing various indicia such as control over work, invoicing practices, and the ability to subcontract. The court found that although there was no written contract, there was a verbal agreement that Mr Pye would act as an independent contractor. The analysis of the relationship’s practical conduct and the High Court’s recent decisions in Personnel Contracting and Jamsek led the court to conclude that Mr Pye was indeed an independent contractor. Consequently, the court ruled that Mr Pye was not dismissed within the meaning of section 365 of the Act, and the application was dismissed.

The court's decision hinged on the classification of Mr Pye’s engagement with Soccer X Pty Ltd, which determined the applicability of the dismissal provisions. The absence of a formal employment contract and the verbal agreement between the parties were key factors in the court’s reasoning. The court's findings effectively barred Mr Pye from pursuing his claim under the dismissal provisions of the Fair Work Act 2009.

Orders