DECISION

Fair Work Act 2009
s.365—General protections

Kevin Lawless
v
Valmec Australia Pty Ltd
(C2021/1763)

COMMISSIONER PLATT

ADELAIDE, 20 MAY 2021

Application to deal with contraventions involving dismissal – jurisdictional objection person not an employee of Respondent - not dismissed.

[1] On 23 March 2021, Mr Kevin Lawless filed a s.365 application (the Application) alleging that he was dismissed by Valmec Australia Pty Ltd (Valmec) in breach of the general protection provisions of the Fair Work Act 2009 (the Act).

[2] On 14 April 2021, Ms Rochelle Airey (of counsel), on behalf of Valmec, filed a Form F8A Employer Response which identified a jurisdictional objection, that Mr Lawless had not been employed by Valmec and thus could not have been dismissed. Valmec contended that Mr Lawless was an employee or contractor to Tailored Resources Pty Ltd (Tailored Resources).

[3] The matter was allocated to my Chambers on 27 April 2021.

[4] On 28 April 2021 my Chambers wrote to Mr Lawless and invited him to consider making an application to amend the name of the Respondent. Mr Lawless was given until 3.00pm, 30 April 2021 to indicate whether he wanted amend the name of the Respondent. Mr Lawless did not respond.

[5] On 4 May 2021, I issued directions for the filing of material and the conduct of a Hearing on 25 May 2021 on the jurisdictional objection as to whether Mr Lawless had been dismissed by the named Respondent. The Hearing was subsequently brought forward to 20 May 2021 at the request of Mr Lawless.

[6] An electronic Court Book, containing all of the submissions, statement and documents provided by the parties was circulated by email prior to the Hearing.

[7] The parties filed material and a Hearing was conducted by teleconference on 20 May 2021. The Hearing was recorded. Mr Lawless represented himself. Valmec was represented by Ms Airey, permission was granted pursuant to s.596 based on complexity and efficiency and was unopposed by Mr Lawless. The Hearing was conducted as a Determinative Conference in order to mitigate the impact of representation on Mr Lawless.

[8] By way of background, Valmec is contracted to provide services to Beach Energy. Valmec contend that they engaged Mr Lawless through a labour provider but did not employ him and thus could not have dismissed him.

[9] Valmec provided the following material:

• A witness statement of Deon McLaughlin dated 7 May 2021. 1

• A supplementary witness statement of Deon McLaughlin dated 19 May 2021. 2

[10] Mr McLaughlin gave evidence and was cross-examined by Mr Lawless.

[11] The documents submitted through Mr McLaughlin included:

• A copy of a commercial contract between Valmec and Tailored Resources which concerns the supply of temporary workers to Valmec by Tailored Resources executed on 3 February 2021. Clauses 7.4 and 7.5 of the contract provides that Tailored Recourses will employ and pay the worker and charge a fee to Valmec.

• An email from Mr Lawless to…

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: [2021] FWC 2908
Decision Date: 20 MAY 2021

CaseChat Overview and Summary

In the matter of Kevin Lawless versus Valmec Australia Pty Ltd, the Federal Circuit Court was presented with an application regarding alleged contraventions of the Fair Work Act, specifically concerning the dismissal of the applicant. The applicant, Mr Lawless, sought relief on the basis that he had been unfairly dismissed. Valmec Australia Pty Ltd, the respondent, contested the application on jurisdictional grounds, arguing that Mr Lawless was not their employee and therefore, no dismissal had occurred.

The court had to determine whether Mr Lawless qualified as an employee of Valmec Australia Pty Ltd for the purposes of the Fair Work Act and whether the court had jurisdiction to hear the application. The primary issue was whether Mr Lawless, who claimed to have been dismissed, was indeed an employee of the respondent. If it was found that he was not an employee, the court would lack jurisdiction to entertain the matter.

The court examined the relationship between Mr Lawless and Valmec Australia Pty Ltd, assessing the terms of their agreement and the nature of their working relationship. The court concluded that Mr Lawless did not meet the criteria to be considered an employee of Valmec Australia Pty Ltd under the Fair Work Act. As such, the court determined it did not have the requisite jurisdiction to proceed with the application concerning the alleged dismissal. Consequently, the application was dismissed.

Orders