DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kyyim Carter
v
RUBIK3 Pty Ltd
(U2021/1868)

DEPUTY PRESIDENT DEAN

CANBERRA, 20 JULY 2021

Application for an unfair dismissal remedy – employee or independent contractor – minimum employment period – application dismissed.

[1] On 5 March 2021 Mr Kyyim Carter made an application pursuant to s.394 of the Fair Work Act 2009 for a remedy in respect of his alleged unfair dismissal from Rubik3 Pty Ltd (Rubik3).

[2] In his unfair dismissal application, Mr Carter stated that he commenced employment with Rubik3 on 13 July 2020 and that his dismissal took effect on 12 February 2021.

[3] Rubik3 raised a jurisdictional objection on the ground that Mr Carter was engaged as an independent contractor and was not an employee of Rubik3. In the alternative, Rubik3 contended that if it was determined that Mr Carter was an employee, his seven months employment with Rubik3 does not meet the minimum employment period as it is a small business employer.

[4] Mr Carter argued that he was an employee and performed work pursuant to an employment agreement. He also contended that Rubik3 was not a small business employer and therefore he had met the minimum employment period.

[5] The Commission must be satisfied that a person is protected from unfair dismissal at the time of being dismissed before it may make an order for an unfair dismissal remedy. Section 382 of the Act defines when a person is protected from unfair dismissal which requires that the person be an ‘employee’. Further, the Act requires that employees have met the minimum employment period.

[6] The matter was listed for hearing by telephone on 17 May 2021. Mr Carter appeared on his own behalf and Mr W Marshall, solicitor, appeared with permission for Rubik3. I granted permission because I was satisfied that the requirements of s596(2)(a) were met. Oral evidence was given by Mr Carter and Ms J Kamira.

[7] For the reasons set out below, I find that Mr Carter was an independent contractor and was therefore not a person protected from unfair dismissal within the meaning of s.382 of the Act. If I am wrong in relation to this finding, I am satisfied that Mr Carter has not met the minimum employment period as Rubik3 is a small business employer.

Background

[8] Rubik3 operates a business which provides strategic workforce solutions to clients in the private and public sectors through contractual arrangements.

[9] On 7 July 2020, Mr Carter entered into a Contractor Agreement (the Agreement) with Rubik3 to perform services as a data officer for a client of the Respondent, the Department of Industry, Science, Energy and Resources (the Department).

[10] The Agreement relevantly provides the following:

• confirms that Mr Carter was engaged as an independent contractor to perform services for the Department;

• confirms that Rubik3 and Mr Carter do not intend to constitute or create an employee-employer relationship, agency, joint venture or partnership between Mr Carter,…

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 2812
Decision Date: 20 JULY 2021

CaseChat Overview and Summary

Kyyim Carter filed an application for unfair dismissal against Rubik3 Pty Ltd in the Fair Work Commission. The applicant, Carter, sought to be recognised as an employee rather than an independent contractor, and contended that he was entitled to an unfair dismissal remedy. Rubik3 Pty Ltd argued that Carter was an independent contractor and had not satisfied the minimum employment period required for unfair dismissal claims.

The primary legal issues before the court were whether Carter was an employee or an independent contractor, and if he had worked for Rubik3 Pty Ltd for the minimum period required to bring an unfair dismissal claim. The court had to determine the nature of the relationship between the parties and assess whether the applicant's employment period met the statutory threshold for unfair dismissal claims.

The court examined the circumstances surrounding Carter's engagement and the terms of his relationship with Rubik3 Pty Ltd. It assessed the control exercised by Rubik3 Pty Ltd over Carter, the degree of financial risk undertaken by Carter, and the extent to which Carter's work was an integral part of Rubik3 Pty Ltd's business. The court concluded that Carter was an independent contractor, not an employee. Additionally, the court found that Carter had not worked for Rubik3 Pty Ltd for the requisite minimum period of twelve months. As a result, the court dismissed Carter's application for an unfair dismissal remedy.

The Fair Work Commission dismissed Carter's application for unfair dismissal, finding that he was an independent contractor and had not worked for Rubik3 Pty Ltd for the minimum required period. The court did not grant the remedy sought by Carter, and the application was dismissed in its entirety.

Orders