DECISION

Fair Work Act 2009
s.604—Appeal of decision

Kyyim Carter
v
RUBIK3 Pty Ltd
(C2021/4679)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT ANDERSON
COMMISSIONER O’NEILL

SYDNEY, 6 DECEMBER 2021

Appeal against decision [2021] FWC 2812 of Deputy President Dean at Canberra on 20 July 2021 in matter number U2021/1868 – unfair dismissal application - jurisdiction – whether employee or contractor – whether minimum employment period served – no issue of principle or error – permission to appeal refused

[1] On 10 August 2021 Kyyim Carter (Mr Carter, the appellant) lodged an appeal, for which permission is required, against a decision of Deputy President Dean issued on 20 July 2021 1 in which his unfair dismissal claim was dismissed on jurisdictional grounds.

[2] The respondent to the appeal is RUBIK3 Pty Ltd (RUBIK3).

[3] Mr Carter sought a stay of the decision. In advance of these appeal proceedings, Mr Carter sought an order for production of documents.

[4] No stay was granted in light of the fact that the only order made by the Deputy President was an order to dismiss the first instance application.

[5] The application for production is misconceived. The documents sought are contracts concerning another person and matters concerning the respondent’s operations. Mr Carter seeks production to introduce new evidentiary material. An appellate proceeding let alone one where permission is required is not the forum for ordering production of fresh evidence in advance of an appeal being determined.

[6] Mr Carter filed materials in support of his application for permission. By agreement, the matter was dealt with on the papers.

The Decision

[7] The application by Mr Carter under s 394 of the Fair Work Act 2009 (FW Act) was objected to by RUBIK3 on two jurisdictional grounds: firstly, that Mr Carter was a contractor engaged to provide services to a government department client, and not an employee; and secondly, that in any event Mr Carter had not served the minimum employment period required by the FW Act to be eligible to make an unfair dismissal claim.

[8] At first instance, both Mr Carter and a Ms Joanne Kamira gave evidence on statements filed in their name. Ms Kamira was the principal of a business operating as a human resources service provider (Capital Workplace) providing services to RUBIK3. RUBIK3 is a professional services consulting firm providing labour to clients. It was providing those services at the time RUBIK3 sourced Mr Carter’s labour for work in the business of a government department client.

[9] The Deputy President dismissed Mr Carter’s application on both of the jurisdictional grounds advanced by RUBIK3.

[10] On whether Mr Carter was an employee, the Deputy President found:

“[29] The evidence demonstrates, and I find that:

a. The written terms of Mr Carter’s engagement, i.e. the Agreement, clearly spell out that he was engaged as an independent contractor and the parties did not intend to create an employment relationship;

b. Mr Carter was engaged to provide services because of his…

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] FWCFB 6060
Decision Date: 6 DECEMBER 2021

CaseChat Overview and Summary

Kyyim Carter, the applicant, sought to appeal a decision by Deputy President Dean of the Fair Work Commission, which dismissed his unfair dismissal application against Rubik3 Pty Ltd, the respondent. The applicant claimed unfair dismissal and sought reinstatement, back pay and compensation. The dispute centred on the classification of the applicant's employment status, whether he was an employee or a contractor, and whether he had served the requisite minimum employment period to bring such an application. The appeal was heard in the Full Bench of the Fair Work Commission.

The legal issues before the court involved determining the applicant's employment status and whether he had satisfied the minimum employment period requirement to lodge an unfair dismissal application. The applicant argued that he was an employee of the respondent and had worked for them for at least six months, which satisfied the minimum employment period. The respondent contended that the applicant was an independent contractor and had not fulfilled the necessary employment period to bring an unfair dismissal application. The court needed to ascertain the correct classification of the applicant's employment status and whether he had met the minimum employment period to grant the application.

The court examined the terms of the contract between the applicant and the respondent, along with the surrounding circumstances, to determine the nature of their relationship. The court found that the applicant was an independent contractor, not an employee, and that he had not served the requisite minimum employment period to bring an unfair dismissal application. The court considered the evidence provided by both parties and concluded that the primary decision was not affected by any principle or error. Therefore, the appeal was dismissed, and permission to appeal was refused.

No further orders were made by the court.

Orders