Ian Frances v U Blinds Shutters and Awnings T/A U Blinds Australia

[2014] FWC 1615

[2014] FWC 1615

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ian Frances
v
U Blinds Shutters & Awnings T/A U Blinds Australia
(U2013/13906)

COMMISSIONER LEE MELBOURNE, 7 MARCH 2014

Application for relief from unfair dismissal - jurisdictional objection - whether applicant employee or independent contractor

[1] On 25 September 2013, Mr Ian Frances (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act (the Act) for an unfair dismissal remedy in respect of the termination of his employment by U Blinds Shutters and Awnings T/A U Blinds Australia (the Respondent). On 4 November 2013, a response to the application was filed by the Respondent. The Respondent stated that the Applicant had no grounds to claim unfair dismissal as at all times he was engaged as a contractor and was therefore not a person protected from unfair dismissal.

[2] This decision deals with the Respondents’ jurisdictional objection only.

[3] At the hearing of the jurisdictional objection, I granted the Applicant permission to be represented by a legal representative, Ms Cunningham, as I determined that it would enable the matter to be dealt with more efficiently taking into account the complexity of the jurisdictional objection. Mr. Ralph for the Respondent was self represented. Mr. Ralph, a director of the Respondent gave evidence on his own behalf. Ms. Wren, the company secretary and part-owner of the Respondent also gave evidence on behalf of the Respondent.

Statutory context

[4] Section 394 of the Act provides that a person who has been dismissed may make an unfair dismissal remedy application to the Commission. Section 390 of the Act provides that the Commission may only order a remedy if satisfied the person was “protected from unfair dismissal” at the relevant time. Under section 382 of the Act, one of the requirements for a person to be “protected from unfair dismissal” at the relevant time is that the “person is an employee” at that time. Her Honour Senior Deputy President Acton succinctly dealt with the relevant law in Gugliandolo v Live TraderGlobal Pty Ltd T/A LTG Goldrock 1:

“[5] The matter of whether a person is an employee or independent contractor was recently considered by Perram J in ACE Insurance Ltd v Trifunovski and Others. His Honour said:

“…first, the distinction between an employee and an independent contractor is ‘rooted fundamentally in the difference between a person who serves his employer in his, the employer’s, business, and a person who carries on a trade or business of his own’; secondly, the answers to that question are to be determined by reference to the ‘totality’ of the relationship; thirdly, a number of indicia have accreted over time in the authorities which are thought to throw light to varying degrees on the outcome without being determinative: the terms of the contract; the intention of the parties; whether tax is deducted; whether sub-contracting is permitted; whether uniforms are worn; whether tools are supplied; whether holidays permitted; the extent of control of, or the right to control, the putative employee whether actual or de jure; whether wages are paid or instead whether there exists a commission structure; what is disclosed in the tax returns; whether one party ‘represents’ the other; for the benefit of whom does the goodwill in the business inure; how ‘business-like’ is the alleged business of the putative employee – are there systems, manuals and invoices; and so on – the list is neither exhaustive nor short.” [Original references omitted]

[6] The decision of Perram J in ACE Insurance was affirmed on appeal by the Full Federal Court in ACE Insurance Limited v Trifunovski.  Buchanan J, with whom Lander and Roberston JJ agreed, extensively surveyed the case law on whether an employment relationship exists. Thereafter his Honour said:

“102 It is trite to say that the foregoing survey yields no single or unifying test to determine whether an employment relationship exists. Some features of a particular relationship may tend strongly against such a conclusion. Principal amongst such features, in my view, are contractual terms which deny any requirement for personal service or represent clear indications of the pursuit of an independent business. Even where such features are absent the proper conclusion may be that a particular relationship is not one of employment, but the analysis is less straightforward.

103 Of the indicia of employment it is clear that a right of control remains an important consideration in many cases. It may be found in a right of organisation and allocation of work, as much as in some theoretical right to say how actual work should be done.”

[7] Subsequent to the decision of Perram J in ACE Insurance, a Full Bench of Fair Work Australia in Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario summarised the general law approach to distinguishing between employees and independent contractors as follows:

“[30] …

(1) In determining whether a worker is an employee or an independent contractor the ultimate question is whether the worker is the servant of another in that other’s business, or whether the worker carries on a trade or business of his or her own behalf: that is, whether, viewed as a practical matter, the putative worker could be said to be conducting a business of his or her own of which the work in question forms part? This question is concerned with the objective character of the relationship. It is answered by considering the terms of the contract and the totality of the relationship.

(2) The nature of the work performed and the manner in which it is performed must always be considered. This will always be relevant to the identification of relevant indicia and the relative weight to be assigned to various indicia and may often be relevant to the construction of ambiguous terms in the contract.

(3) The terms and terminology of the contract are always important. However, the parties cannot alter the true nature of their relationship by putting a different label on it. In particular, an express term that the worker is an independent contractor cannot take effect according to its terms if it contradicts the effect of the terms of the contract as a whole: the parties cannot deem the relationship between themselves to be something it is not. Similarly, subsequent conduct of the parties may demonstrate that relationship has a character contrary to the terms of the contract.

(4) Consideration should then be given to the various indicia identified in Stevens v Brodribb Sawmilling Co Pty Ltd and the other authorities as are relevant in the particular context. For ease of reference the following is a list of indicia identified in the authorities:

• Whether the putative employer exercises, or has the right to exercise, control over the manner in which work is performed, place of work, hours of work and the like.

Control of this sort is indicative of a relationship of employment. The absence of such control or the right to exercise control is indicative of an independent contract. While control of this sort is a significant factor it is not by itself determinative. In particular, the absence of control over the way in which work is performed is not a strong indicator that a worker is an independent contractor where the work involves a high degree of skill and expertise. On the other hand, where there is a high level of control over the way in which work is performed and the worker is presented to the world at large as a representative of the business then this weighs significantly in favour of the worker being an employee.

‘The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter’s order and directions.’ ‘[B]ut in some circumstances it may even be a mistake to treat as decisive a reservation of control over the manner in which work is performed for another. That was made clear in Queensland Stations Pty. Ltd v Federal Commissioner of Taxation, a case involving a droving contract in which Dixon J observed that the reservation of a right to direct or superintend the performance of the task cannot transform into a contract of service what in essence is an independent contract.’

• Whether the worker performs work for others (or has a genuine and practical entitlement to do so).

The right to the exclusive services of the person engaged is characteristic of the employment relationship. On the other hand, working for others (or the genuine and practical entitlement to do so) suggests an independent contract.

• Whether the worker has a separate place of work and or advertises his or her services to the world at large.



• Whether the worker provides and maintains significant tools or equipment.

Where the worker’s investment in capital equipment is substantial and a substantial degree of skill or training is required to use or operate that equipment the worker will be an independent contractor in the absence of overwhelming indications to the contrary.

• Whether the work can be delegated or subcontracted.

If the worker is contractually entitled to delegate the work to others (without reference to the putative employer) then this is a strong indicator that the worker is an independent contractor. This is because a contract of service (as distinct from a contract for services) is personal in nature: it is a contract for the supply of the services of the worker personally.

• Whether the putative employer has the right to suspend or dismiss the person engaged.



• Whether the putative employer presents the worker to the world at large as an emanation of the business.

Typically, this will arise because the worker is required to wear the livery of the putative employer.

• Whether income tax is deducted from remuneration paid to the worker.



• Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks.

Employees tend to be paid a periodic wage or salary. Independent contractors tend to be paid by reference to completion of tasks. Obviously, in the modern economy this distinction has reduced relevance.

• Whether the worker is provided with paid holidays or sick leave.



• Whether the work involves a profession, trade or distinct calling on the part of the person engaged.

Such persons tend to be engaged as independent contractors rather than as employees.

• Whether the worker creates goodwill or saleable assets in the course of his or her work.



• Whether the worker spends a significant portion of his remuneration on business expenses.

It should be borne in mind that no list of indicia is to be regarded as comprehensive or exhaustive and the weight to be given to particular indicia will vary according to the circumstances. Features of the relationship in a particular case which do not appear in this list may nevertheless be relevant to a determination of the ultimate question.

(5) Where a consideration of the indicia (in the context of the nature of the work performed and the terms of the contract) points one way or overwhelmingly one way so as to yield a clear result, the determination should be in accordance with that result. However, a consideration of the indicia is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture of the relationship from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another. The ultimate question remains as stated in (1) above. If, having approached the matter in that way, the relationship remains ambiguous, such that the ultimate question cannot be answered with satisfaction one way or the other, then the parties can remove that ambiguity a term that declares the relationship to have one character or the other.

(6) If the result is still uncertain then the determination should be guided by ‘matters which are expressive of the fundamental concerns underlying the doctrine of vicarious liability’ including the ‘notions’ referred to in paragraphs [41] and [42] of Hollis v Vabu.” [Original endnotes omitted]” [footnotes omitted]

[5] I respectfully agree with Her Honours assessment of the relevant legal principles in determining matters of this type and will adopt and apply them as relevant to the facts in this matter.

The facts

[6] As indicated above, the Applicant gave evidence on his own behalf in this matter. Mr Ralph the Director of the Respondent and Ms Wren gave evidence of a behalf of the Respondent.

[7] The Applicant was initially employed or engaged as a contractor on or around 18 November 2011 by the Respondent. Initially his title was that of Sales Manager and then this was later changed to Area Manager. The Applicant became aware of the position via an advertisement the Respondent placed on the website “seek.com”. The Applicant’s evidence is that it was a sales consultant position. The Applicant attended an interview with both Mr Ralph and Ms Reding at the Respondent’s office and showroom in Hampton, Victoria.

[8] In his evidence the Applicant agreed with Mr Ralph“… [t]hat the ad and the discussion held with us detailed that it was a commission only position based on sales”. 2 However, the Applicant claimed that subsequent to the interview, it emerged that the position had a greater level of responsibility and involved the payment of both a wage and a higher commission rate.3 The Respondent disputed that evidence.

[9] The Applicant dealt with sales enquiries directed from the Respondent’s national telephone number to facilitate sales and installations on the behalf of the Respondent. The Applicant’s evidence was that he was given “leads” by the Respondent and then using those leads went out and attempted to sell the Respondent’s product. The Applicant worked all around metropolitan Melbourne. The Applicant also received leads for areas such as Mildura and Orbost but exercised his own discretion not to follow up those leads.

[10] The general background to the alleged dismissal was set out by Ms Cunningham for the Applicant as follows:

“On or about fifth of August 2013 the respondent sent a letter dated the same date to the applicant requesting that the applicant operate under a fully incorporated company and this was to take place on or before 1 September 2013. On or about 21 August 2013 the applicant met with Mr Chris Ralph, as the director of the respondent...for the purposes of a sales meeting. During this meeting the applicant was advised on [the] telephone by the respondent’s accountant that he was required to establish a fully incorporated company if his employment or engagement was to continue. On or about 23 August 2013, so two days later, the applicant advised Mr Ralph that he required surgery for a brain aneurism and therefore requested an extension on the 1 September deadline that had been given to him. The applicant was not granted an extension and his employment or engagement was in fact terminated on 26 August 2013.” 4

[11] Mr Ralph did not challenge the factual summary set out by Ms. Cunningham however he was clear throughout proceedings that the reason the employment or engagement had been terminated was as a result of the Applicant’s erratic behaviour including an aggressive nature towards female customers and staff. 5

[12] On cross examination by Ms Cunningham for the Applicant, Mr Ralph was asked why he wrote to all staff on 5 August 2013 requesting that they incorporate and start acting underneath an incorporated entity as opposed to an ABN. In response Mr Ralph stated;

“Yes, good question, fair question. We were - with the changing laws the way that the - is moving with - with employees as such and that the - whereas there’s always been an area where the definition between employees and contractors is very straightforward, there seems to have been some muddying the waters along the way and that whereas before we would engage sole traders, partnerships, incorporated companies or trusts, the advice that we were given-and some years ago I might say that it was said that, you know, to ensure that the relationship is on - purely on a business level - that it would be best for all contractors to move to this area, to either be a proprietary limited company or as a trust.” 6

[13] Mr. Ralph strongly denied the proposition put to him on cross examination that he had received advice that the contractors he had engaged on ABN numbers and not as incorporated entities or trusts were in fact employees. 7

[14] The Applicant’s own evidence was that he was employed to work as many days per week as he so desired; that subject to the amount of leads he followed up, that the number of days worked was anywhere between five and seven days per week; that he was not instructed to work the 5-7 days but such was the volume of leads received that that work pattern was necessary. 8 The Applicant claims to have worked on average between 60 and 70 hours per week.

[15] The Respondent, through the evidence of Ms Wren, claimed that the work was seasonal and that at times it would only be one day’s work per week. 9

[16] The Applicant’s evidence is that, during the period of engagement with the Respondent, the only other source of income he earned was officiating as a field umpire at suburban football games.

[17] The Applicant’s evidence was that he was paid a wage and a commission by the Respondent. His evidence was that he was paid a weekly wage of $600 per year for 52 weeks of the year as well as a 15% commission on products sold. However, the Applicant explained that the $600 was included in any commission payment made, that is, it was not paid as an additional payment. The Applicant explained as follows;

“It was explained to me that the $600 wage was a minimum wage and that if I was unable, due to either lack of opportunity or lack of skill, to sell any product I would be at least assured of $600 per week. There was no doubt, as it was explained to me, that the $600 per week was a wage.” 10

[18] The Applicant’s evidence was that there was only one occasion that he was unable to reach the $600 wage minimum and that was around 2 January 2012 where he was paid $600 into his nominated bank account by the proprietor. 11 The Applicant denied the proposition put to him on cross examination that the $600 payment was an advance on his Commission payment.12

[19] The Applicant gave evidence that he would submit invoices to the Respondent that would include an order number, the customer’s surname, customer’s suburb, the amount of money charged, and the amount of commission to be claimed. The invoice was submitted fortnightly to the Queensland head office on Thursdays at 5:00pm. 13 The Respondent would deduct from the commission payments due to the Applicant monies from time to time as a result of claimed errors that the Applicant had made in the course of his employment/engagement.

[20] The Applicant claimed that he took 16 days leave in September 2012. The Applicant stated that when he took the leave that he informed the proprietor that he was taking that leave “… more out of courtesy than compulsory to give notice of any leave taken”. 14 The Applicant claims that the respondent then failed to pay him for the leave period.

[21] The Applicant conceded that income tax was never deducted from his payments and that when he was employed he provided an ABN number as requested by the Respondent.

[22] The Applicant was issued with business cards by the Respondent that stated his name and title. A copy of the business card was attached to the Applicant’s submissions and clearly indicates that the card represents the Applicant as Area Manager of the Respondent. It provides a mobile phone number for the Applicant as well as a 1300 number, fax number and email address specific to the Applicant’s name. The business card also contains the address of the Respondent’s showroom in Hampton and a reference to the Respondent’s website.

[23] The Applicant was not required to wear a uniform by the Respondent. The Applicant reported to the Respondent director “on an as needs basis” on matters such as the number of leads received from Queensland, the number of leads he was unable to attend to as well as the number of sales made and the dollar amount of sales. 15

[24] The Applicant stated that the Respondent supplied him with an iphone 16, sales brochures, quote pad, a tape measure, samples, letterheads, envelopes, stamps and other office stationary.17 The Applicant claims that the only equipment he supplied was “a drill and some screws and plugs”18 when he installed some blinds. However, the Applicant claims the Respondent reimbursed him for the cost of the purchase of the drill.19

[25] On cross examination the Applicant conceded that he supplied his own vehicle and paid for his own expenses on the vehicle including petrol. 20 The Applicant used a computer at the Respondent’s showroom in Hampton and denied that he used his own home computer for work purposes.21 The Respondent provided evidence that the Applicant would pay for and make up his own sales boards.22However the Respondent conceded that these boards still represented the Respondent rather than any business of the Applicant.23

[26] Mr. Ralph offered the Applicant to attend a training course in Sydney on Shutters and the Applicant attended the sales conference. 24

[27] The Applicant’s evidence was that while working for the Respondent he did not advertise his sales and marketing skills elsewhere. 25 The Applicant disputed the claim by the Respondent that he had sought employment with a different company while employed by the Respondent. The Applicant agreed with the Respondent that he attempted to earn other income selling football inspired paintings.26 However, the Applicant stated that he largely failed due to ill-health to fulfil that ambition.

[28] The business name attached to the Applicant’s ABN number is “KK and S Services”. I note that the Applicant’s evidence was that his company name did appear on some documents. 27 However, it is not clear on what documents. I note that the copies of bank transfer receipts submitted by the Respondent show regular payments being made to an account name of Ian Francis rather than that of KK and S Services.28

[29] The evidence of Ms Wren was that the Respondent engages approximately 18 sales staff and that none of those staff are employees. The evidence of Ms Wren was that the industry-standard for engaging sales staff and installers is based on a sub contract basis and that the bigger players in the industry engaged staff on the same basis. 29

[30] The evidence of Ms Wren was that the Applicant did not have any power to make decisions on behalf of the company, stating that the Applicant “had to run all, basically, decisions through either [Mr Ralph] or I”. 30 However, the evidence of Mr. Ralph was that the Applicant had authority on giving pricing in the home because negotiation is sometimes required and that he could make some decisions.31 Ms Wren’s evidence was that the Respondent would have been happy for the Applicant to subcontract out the work he was given by the Respondent but that she was not sure whether that had happened or didn’t happen.

[31] Mr Ralph for the Respondent submitted that none of the Respondent’s salespeople are employees, stating that this is standard operating procedure in the industry and we have never engaged a salesperson as an employee. At the hearing Mr Ralph stated;

“…It’s very clear from our company model and profile how we engage all sales consultants that is as contract basis and that Mr Francis was engaged on the same and bring this matter before us was both extremely surprising and disappointing because he was well aware what the level of engagement was.” 32

Consideration

[32] The jurisdictional issue to be determined is whether the Applicant was an employee of the Respondent at the time he ceased work for them on 26 August 2013. The work the Applicant performed before he was terminated primarily involved following up potential customer leads provided by the Respondent in order to sell those potential customers the blinds supplied by the Respondent. There was in evidence of one engagement to install blinds but this does not appear to be a significant part of his role. The Applicant’s title was that of Area Manager.

[33] There are a number of factors favouring a conclusion that the Applicant was an employee of the Respondent rather than a contractor at the time he ceased working for them. The Respondent presented the Applicant as an emanation of the business. The Respondent provided him, of their own accord, with a business card that prominently featured the logo of the Respondent and referenced the Applicant as its Area Manager. There is no evidence to support the proposition the Applicant or his company “KK and S Services” was operating any other business outside of the work the Applicant performed for the Respondent. At best he had dabbled and failed in attempts to sell “football inspired paintings” and had made some money umpiring suburban football games.

[34] As to the hours the Applicant worked for the Respondent, there was a contest in the evidence between that of the Applicant and Ms. Wren. Ms. Wren claimed the work was seasonal and that the Respondent only worked one day a week during the slow season. Ms. Wren stated this was the reason sales staff are engaged as contractors. 33

[35] However, the evidence of the Applicant is that there was only one occasion where he earned less than $600 in a week. This is inconsistent with the claim of Ms. Wren that the Applicant might work less than one day a week during winter. There was no evidence to support the claim of Ms. Wren that there were seasonal fluctuations of the magnitude claimed. The only evidence relating to the winter period is a payment made to the Applicant by the Respondent on 2 July 2013 for $2,511.00. This is not conclusive but is certainly not consistent with the proposition that the Applicant was working for less than a day a week in that period. I do not think the evidence of Ms. Wren on this point was credible. I accept the evidence of the Applicant that he effectively worked full time for the Respondent.

[36] While it is not disputed that the Applicant had control over his working hours, a factor in favour of finding him to be a contractor, this has to be weighed against the fact that in reality, he worked full time for the Respondent. His working arrangements meant there was no genuine or practical entitlement to work for others.

[37] As to the direction and control exerted by the Respondent over the Applicant, the evidence was mixed. The evidence of Ms. Wren was that the Applicant had to check “all decisions” with them, suggesting a significant level of control. But Mr. Ralph for the Respondent gave contradictory evidence on that point. 34

[38] The Applicant’s evidence was that he reported to the Respondent on an “as needs basis” on matters such as the number of leads followed or not followed up as well as sales made and the dollar amount of sales. The Applicant’s evidence was there was not a specific direction on which leads to follow up. The Applicant attended training offered by the employer. 35

[39] Ms. Wren gave evidence that the Applicant was able to sub-contract out the work he performed. However, she was unable to say if he ever did sub-contract the work. It is difficult to reconcile this claim of Ms. Wren with her earlier evidence that the Applicant had to check all decisions with either her or Mr. Ralph. The evidence of Ms. Wren on this point was not credible. Mr. Ralph claimed the Applicant did sub-contract his work however did not provide any particular evidence of this occurring. The Applicant was not cross examined on the issue of whether or not he subcontracted his work. I am not satisfied that the Applicant did in fact sub-contract any aspects of the work he performed, nor that it was expected that he would do so. Overall, the evidence suggests that there was a significant though far from complete level of control over the work performed by the Applicant, exercised by the Respondent. This is more indicative of an employment relationship.

[40] The Respondent supplied to the Applicant an iphone, sales brochures, quote pad, a tape measure, samples, letterheads, envelopes, stamps and other office stationary. A drill the Applicant supplied was reimbursed by the Respondent. The Applicant used a computer and an office supplied by the Respondent and was clear in his evidence he did not use his own home computer. The Applicant did, at his own expense, make up his own fliers and sale boards. However, these items again represented the Respondent rather than the Applicant’s own company. The Applicant did however supply his own motor vehicle in order to undertake the work. In summary, it only the provision of the motor vehicle and the making up of some fliers and sale boards by the Applicant that is indicative of a contractor relationship. Looked at as a whole, this does not meet the test as outlined in the case law above of a substantial investment in capital equipment with a substantial degree of skill or training required to use that equipment. The Respondent largely provided the tools and equipment necessary to perform the role. This is more indicative of an employment relationship.

[41] The Applicant claimed he was paid a minimum of $600 which was absorbed, on all but one occasion into the Commission payments he received. He submitted invoices on a regular fortnightly basis to the Respondent. However, these invoices were essentially a record of the amount of sales made and the name of the customer with a calculation of the amount of Commission to be paid to the Applicant. The invoice templates had a box to allow for GST to be applied but it does not appear that the invoices included a charge for GST. The invoices show that they were all in the name of “Ian” rather than that of the Applicant’s company. The bank records submitted show that the subsequent payments that were made to the Applicant were made to an account named as “Ian Frances” rather than to the Applicant’s company name, the account number on the bank statements corresponding with the account number at the top of the invoices.

[42] Overall, while the invoices are suggestive of a contractor relationship, they are invoices from the Applicant, not his company. Further, while both the Applicant and the Respondent referred to them as invoices, they appear more in the nature of a sales record and a claim for subsequent commission.

[43] The factors that most clearly favour a conclusion that the Applicant was an independent contractor were that he was responsible for his own tax affairs, he supplied an ABN number to the Respondent and he understood that he was employed as a contractor. He was not supplied with or required to wear a company uniform of any sort. He had flexibility with his hours of work notwithstanding that he effectively worked full time. He was not paid superannuation nor provided with paid holidays.

[44] On balance, I am satisfied that the Applicant was an employee of the Respondent at the time he was dismissed. The factors favouring a conclusion he was an employee at the relevant time are more strongly indicative of the actual relationship between the parties than the factors suggesting a contractor relationship. While the Applicant and the Respondent treated the engagement as a contractor relationship, and the terms and terminology of the contract are important, the parties cannot alter the true nature of their relationship by putting a different label on it. 36

[45] As a practical matter and having regard to the totality of the relationship, I do not think that the Applicant can be regarded as having, at the relevant time, carried on a trade or business of his own of which his work for “KK and S Services” formed part. To the contrary, he worked exclusively, leaving aside football umpiring on weekends, for the Respondent.

[46] It follows from the above reasoning that I conclude that the Applicant was an employee of the Respondent at the time he ceased to work for them.

Conclusion

[47] For the foregoing reasons, the Respondent’s jurisdictional objection against the Applicant’s unfair dismissal remedy application is dismissed. An order [PR548497] to this effect will be issued with this decision. I emphasise that I have made no determination as to the merits of that application. The application will now be referred to the Fair Work Commission Panel Head for Termination of Employment matters for further processing.

COMMISSIONER

Appearances:

A Cunningham sought permission to appear for the Applicant

C Ralph for the Respondent

Hearing details:

2014

Melbourne:

January 17

 1   [2013] FWC 3887

 2   PN136

 3   PN136

 4   PN20

 5   See Exhibit R2

 6   PN279

 7   PN281

 8   PN32

 9   PN233

 10   PN36

 11   PN37

 12   PN86

 13   PN58

 14   PN60

 15   PN46

 16   PN61-62

 17   PN47

 18   PN48

 19   PN48

 20   PN88-89

 21   PN91

 22   PN267

 23   PN268

 24   PN275-276

 25   PN50

 26   PN103

 27   PN55

 28   Exhibit R2

 29   PN194-195

 30   PN220

 31   PN260

 32   PN254

 33   PN233

 34   PN260

 35   PN276

 36   Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario[2011] FWAFB 8307, [30]

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<Price code C, PR548462>