Kenneth Craig Hill v Zeta G Group Pty Ltd
[2024] FWC 575
•4 MARCH 2024
| [2024] FWC 575 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Kenneth Craig Hill
v
Zeta G Group Pty Ltd
(C2023/7201)
| DEPUTY PRESIDENT LAKE | BRISBANE, 4 MARCH 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection – no dismissal – multiple applications – application dismissed.
Kenneth Craig Hill (the Applicant) lodged a general protections application involving dismissal to the Fair Work Commission (the Commission) on 20 November 2023. The Applicant claimed that adverse action was taken against him by Zeta G Group Pty Ltd (the Respondent) under s. 351 of the Fair Work Act 2009 (Cth) (the Act).
The Respondent raised a jurisdictional objection that the Applicant was not entitled to make an application as he had made an application for unlawful discrimination at the Queensland Human Rights Commission. In the alternative, the Respondent raised an objection that the Applicant was not employed by the Respondent and therefore cannot be dismissed. The Applicant is only eligible to make a claim under s.365 of the Act if the Applicant is dismissed in accordance with s.386 of the Act.
Directions were issued to determine the jurisdictional objections. The Applicant did not file any further materials and did not attend the Hearing. The matter was heard via Microsoft Teams on 19 February 2024.
The Applicant was contacted by my Chambers regarding his non-attendance and non-compliance of filing submissions relating to the jurisdictional objection on 19 February 2024. It was confirmed by the Applicant that he had made a complaint to the Queensland Human Rights Commission, but he wanted to pursue the General Protections claim as he indicated that the wait time in the Queensland Human Rights Commission was 2 years.
It was noted that the Applicant would be required to establish that he was dismissed in order to be eligible to make a claim under s.365 of the Act per the notice of listing that was issued to him. The Applicant hung up the call and did not attend the hearing.
Background
The Respondent is a startup business which provides educational and lifestyle related content taking place on Chinese social media platforms, along with language consulting for Chinese students and workers in Australia. The Respondent’s main clientele is Chinese Nationals and Chinese persons living in Australia.
The Respondent posted a Seek advertisement for a Workshop Coordinator role on 23 October 2023. The Applicant applied for the role using the name ‘Craig Hill.’
An interview was scheduled on 24 October 202. On 26 October 2023, there were further discussions on the role.
On 31 October 2023, the Respondent was drafting an agreement which contained the rates that the Applicant would be paid. The Respondent requested the Applicant’s ABN to set up the contracting arrangement.
Upon a search of the Applicant’s ABN, the Respondent came across the Applicant’s website titled ChinaNews. The Respondent stated that they would be a politically neutrally company and that the arrangement should not proceed.
The Applicant lodged a claim to the Queensland Human Rights Commission on 2 November 2023 and lodged his claim to the Fair Work Commission 20 November 2023.
Is the Applicant eligible to make an application?
Section 725 of the Act states that an Applicant must not make an application to the Fair Work Commission if any other sections apply:
725 General rule
A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.
General Protections claims fall under the general rule per Section 727 of the Act:
727 General protections FWC applications
(1) This section applies if:
(a) a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and
(b) the application has not:
(i) been withdrawn by the person who made the application; or
(ii) failed for want of jurisdiction; or
(iii) resulted in the issue of a certificate under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful).
(1A) This section also applies if:
(a) a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and
(b) the application has not:
(i) been withdrawn by the person who made the application; or
(ii) failed for want of jurisdiction; and
(c) a certificate in relation to the dispute has been issued by the FWC under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful); and
(d) a notification of the parties’ agreement to the FWC arbitrating the dispute has been made as referred to in paragraphs 369(1)(b) and (c).
(2) A general protections FWC application is an application under section 365 for the FWC to deal with a dispute that relates to dismissal.
Section 732 does not allow an application to the Fair Work Commission in relation to dismissal if an application or complaint is made under another law.
732 Applications and complaints under other laws
(1) This section applies if:
(a) an application or complaint under another law has been made by, or on behalf of, the person in relation to the dismissal; and
(b) the application or complaint has not:
(i) been withdrawn by the person who made the application; or
(ii) failed for want of jurisdiction.
(2) An application or complaint under another law is an application or complaint made under:
(a) a law of the Commonwealth (other than this Act); or
(b) a law of a State or Territory.
(3) For the purposes of this Subdivision, if a complaint under the Australian Human Rights Commission Act 1986 relates to a dismissal only as a result of an amendment of the complaint, the complaint is taken to be made when the complaint is amended.
The Applicant lodged a complaint to the Queensland Human Rights Commission under s.7(j) and s.15(c) of the Anti-Discrimination Act 1991 (Qld). The Applicant lodged the Queensland Human Rights Commission claim first on 2 November 2023.[1]
The Applicant did not provide any evidence that he has withdrawn his Human Rights claim before lodging a General Protections claim. I am satisfied that the Applicant is not eligible to make a claim under s.365 of the Act and the Application should be dismissed on this basis.
Was the Applicant dismissed under s.368 of the Act?
Section 365 of the Act requires a person to be dismissed. Section 386(1) of the Act relevantly provides that 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.
There must be an existence of an employment relationship in order to be considered ‘dismissed’ under s.365 of the Act.
The High Court of Australia in Jamsek and Personnel Contracting determined the case of whether a person is an employee or contractor.[2] The characterisation of the relationship is to be determined by reference only to the parties’ legal rights and obligations. Where a comprehensive written contract is in place, this will be the primary source of the parties’ legal rights and obligations, and it will be decisive in characterising the relationship.
Where no comprehensive written contract is in place, the High Court stated in Jamsek that the “multifactorial” test remains appropriate in identifying the applicable legal rights and obligations which is not derived from the post contract conduct.[3] Therefore, a multifactorial approach is to be adopted. In reliance on a considerable body of case law developed, general legal principles are applied to specific circumstances.[4] Multiple indicia are to be considered, though none alone are determinative. Analysis of the totality of the relationship between the parties is required to determine whether the relationship was one of an employee or independent contractor.
There is no written contract in place as the working relationship never proceeded. It appears that the Applicant was intended to work as an independent contractor.
·In the role, he would bring his own training resources and develop sessions to teach English which indicates he has control of his work.[5]
·Furthermore, the Applicant was intended to be charged at a set rate per workshop he completed. The Applicant was intended to be paid by task rather than a continuing working relationship.[6]
·The Applicant had to provide his own ABN.[7]
·The Applicant attempted to issue the Respondent an invoice of works.[8]
I am not satisfied that the Applicant is an employee of the Respondent.
Conclusion
The Applicant is not eligible to make this application and the jurisdictional objection is upheld. This Application is dismissed. I order accordingly.
DEPUTY PRESIDENT
[1] Witness Statement of Grace Wu, Annexure GW-5.
[2] Asim Nawaz v Raiser Pacific Pty Ltd [2022] FWC 1189 at [50]-[51] citing Jamsek v ZG Operations Pty Ltd [2022] HCA 2 ('Jamsek’); CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 (‘Personnel Contracting’).
[3] Personnel Contracting per Kiefel CJ, Keane and Edelman JJ at [33]-[34], [47], [61], per Gordon J at [174], [186]-[189].
[4] Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; Hollis v Vabu Pty Ltd (2001) 207 CLR 21; Abdalla v Viewdaze Pty Ltd (2003) 122IR 215; Roy Morgan Research Pty Ltd v Commissioner of Taxation (2010) 184 FCR 448; Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario [2011] FWAFB 8307.
[5] Witness Statement of Grace Wu, Annexure GW-2
[6] Ibid.
[7] Ibid.
[8] Ibid, Annexure GW-6.
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