Kimber v Western Auger Drilling Pty Ltd

[2015] FWCFB 3704

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Kimber
v
Western Auger Drilling Pty Ltd
(C2015/632)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER ROBERTS SYDNEY, 13 JULY 2015

Appeal against decision [2015] FWC 38 of Commissioner Spencer at Brisbane on 4 March 2015 in matter number U2014/5107.

[1] This is an appeal by Ms Louise Kimber (the Appellant) against a decision 1 (Decision) of Commissioner Spencer upholding a jurisdictional objection brought by Western Auger Drilling Pty Ltd (Respondent) against the Appellant’s application for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (Cth) (the Act).

[2] Prior to the hearing of the appeal, Ms Anderson of Counsel sought permission to appear for the Appellant and Mr Reed of Counsel sought permission to appear for the Respondent. Given the complexity of the matter, and having regard to s.596 of the Act, permission was granted to both parties to be represented.

Background

[3] The matter at first instance concerns a jurisdictional decision only in relation to a determination of the length of the employment relationship between the parties and the date of dismissal.

[4] The Respondent raised jurisdictional objections in relation to the Appellant’s unfair dismissal application on the basis of s. 382(a) of the Act, contending that the Appellant had not served the minimum employment period under s. 383 of the Act. The Respondent submitted that the Appellant was an independent contractor for the Respondent from 13 March 2013 and then commenced employment with the Respondent on 2 January 2014. The Respondent submitted that in these circumstances the Appellant did not meet the minimum employment period of six months required by the Act. The Appellant conceded that she worked as an independent contractor for the Respondent between 13 March 2013 and 11 July 2013, but contended that from 11 July 2013, her role changed to that of an employee of the Respondent.

Relevant Provisions of the Act

[5] The relevant statutory provisions are set out, as to whether the Appellant is an employee who has completed a period of employment of at least the minimum employment period and whether there was a dismissal at the initiative of the employer.

[6] Section 382 of the Act provides as follows:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[7] The minimum employment period is defined…