Katherine Omu v Department of Defence

[2021] FWC 6216

[2021] FWC 6216

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Katherine Omu
v
Department of Defence
(U2021/8485)

DEPUTY PRESIDENT DEAN CANBERRA, 28 OCTOBER 2021

Application for an unfair dismissal remedy – not an employee of respondent – application dismissed.

[1] On 20 September 2021 Ms Katherine Omu made an application to the Fair Work Commission pursuant to s.394 of the Fair Work Act 2009 for a remedy in respect of her alleged unfair dismissal by the Department of Defence (the Department).

[2] On 8 October 2021, the Department filed a response to the application raising a jurisdictional objection on the ground that Ms Omu was not an employee of the Department. It claimed that Ms Omu was engaged on assignment through Hays Specialist Recruitment (Australia) Pty Limited (Hays) and that it had no employment contract with Ms Omu. Specifically, the Department provided a letter from Hays which confirmed that Ms Omu was employed by Hays to perform work for the Department on a temporary assignment.

[3] The Department’s jurisdictional objection was the subject of a conference conducted by me on 27 October 2021. At the conclusion of the conference, I indicated to the parties that I would issue a decision dismissing the application. What follows are the reasons for that decision.

[4] On 13 October 2021, I caused correspondence to be sent to Ms Omu requesting a response as to whether she agreed that Hays was her employer. In her response, Ms Omu did not respond directly to the question. Rather, she stated that she had been a regular casual employee of the ‘host employer’, the Department, for more than two years and set out in detail the events leading to the cessation of her employment.

[5] Further correspondence was sent to Ms Omu the following day on 14 October 2021 reiterating the question as to whether she agreed that Hays was her employer. She was informed that a person can only bring an unfair dismissal application against their employer. In her response provided on 20 October 2021, Ms Omu maintained that she was unfairly dismissed by the host employer. She said, amongst other things, that: “Although, I may not be protected under the FWC employment laws, I still believe what had occurred is unfair, unreasonable and unjust.” and “I believe my case may not go further with the FWC as I am an unsecured contractor.” Again Ms Omu did not address the issue as to the identity of the employer which she was twice asked to clarify.

[6] This led to the conference on 27 October 2021. At the conference, Ms Omu appeared on her own behalf and Ms B Sporer and Ms K Mills appeared for the Department.

[7] During the course of the conference, Ms Omu was again informed that an application for a remedy for unfair dismissal can only be made against her employer. Ms Omu agreed that Hays was her employer, but wished to proceed with her application against the Department.

[8] It is clear on the material that Ms Omu had not entered into a contract of employment with the Department. Both the Department and Hays have confirmed that Ms Omu was an employee of Hays, and Ms Omu did concede during the conference that Hays was her employer. As a result, I am satisfied that Ms Omu is not an employee of the Department and her application nominating the Department as the employer must be dismissed.

[9] An order dismissing the application will be separately issued.

DEPUTY PRESIDENT

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