John Grass v NSW Chinese Tennis Association Inc

[2021] FWC 1888

[2021] FWC 1888

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

John Grass
v
NSW Chinese Tennis Association Inc
(C2021/314)

COMMISSIONER WILLIAMS PERTH, 8 APRIL 2021

Application to deal with contraventions involving dismissal.

[1] The Applicant, Mr John Grass, filed a Form F8 General Protections Application involving dismissal on 20 January 2021. The application is made under section 365 of the Fair Work Act 2009 (Cth) (the Act).

[2] The Respondent is the New South Wales Chinese Tennis Association Incorporated (the Respondent).

[3] The Respondent’s Form F8A Response to General Protections Application raised a jurisdictional objection that there was not an employee and employer relationship between the Applicant and the Respondent.

[4] Section 365 of the Act, which is set out below, only concerns an employee dismissed by their employer.

“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.”

[5] Section 386 of the Act, as set out below, defines “dismissed” in terms of an employee and employer relationship.

“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.

[6] A conference was conducted to attempt to resolve the application, but this was unsuccessful.

[7] Subsequently, the application has been referred to myself for determination.

[8] Communication between the Applicant and the Fair Work Commission (the Commission), for example an email on 12 February 2021 to the chambers of Deputy President Millhouse, indicates that the Applicant understood he was an independent contractor.

[9] Consequently, on 18 March 2020, the Commission as currently constituted wrote to the Applicant explaining that section 365 of the Act only applies to employees who have been dismissed by their employer. Given that the Applicant apparently understood he was an independent contractor he was asked to review whether he wished to proceed with his application.

[10] Whilst the Applicant responded to this letter, ultimately, he did not discontinue his application. Consequently, on 31 March 2021 the Commission as currently constituted again wrote to him advising that it was the Commission's preliminary view that the application was beyond jurisdiction because he was not an employee who was dismissed by their employer. The Applicant was advised that, subject to consideration of any further submission he wished to make by 7 April 2021, it was the Commission's intention to dismiss his application without further notice for want of jurisdiction.

[11] As at the date of this decision, Mr Grass has not provided any submission addressing the fact that it appears he was not an employee dismissed by his employer.

[12] Consequently, on the totality of the material before the Commission, I find that the Applicant was not an employee dismissed by his employer and so Mr Grass is not able to make an application under section 365 of the Act.

[13] The application is beyond the Commission's jurisdiction and consequently will be dismissed. An order [PR728430] to that effect will now be issued.

Printed by authority of the Commonwealth Government Printer

<PR728429>