Lesley Ann Gordon v Sonya Cohen

[2024] FWC 1316

[2024] FWC 1316

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Lesley Ann Gordon
v

Sonya Cohen

(C2024/1400)

DEPUTY PRESIDENT DEAN CANBERRA, 20 MAY 2024

Application to deal with contraventions involving dismissal – Applicant not dismissed - Respondent not a national system employer.

1. Ms Lesley Gordon (the Applicant) has made an application under s.365 of the Fair Work Act 2009 for the Commission to deal with a general protections dispute involving her alleged dismissal by Ms Sonya Cohen (Respondent).

1. The Respondent objected to the application on the basis that the Applicant was not a person who was dismissed within the meaning of s.386 of the Act because the Applicant was not an employee and because the Respondent is not a national system employer.

1. The Respondent is a disability pensioner who requires in-home support. She has been approved for the provision of such support under the National Disability Insurance Scheme (NDIS).

1. The Applicant and the Respondent entered into a service agreement in which the Applicant agreed to provide the in-home support required by the Respondent. The Applicant was paid directly by the Respondent’s ‘plan management provider’ through the NDIS.

1. The Commission provided information to the Applicant about the jurisdictional objections by email on multiple occasions prior to the hearing which was listed on 20 May 2024. This included information available on the Commission’s website about the definition of a national system employer.

1. Directions were also issued which in part required the Applicant to address why she said the Respondent was a national system employer. The Applicant did not comply with the directions issued by the Commission and filed no material despite being given many opportunities to do so.

Who is a national system employer?

1. A national system employer is defined in s.14 of the Act as:

(a)a constitutional corporation, so far as it employs, or usually employs, an individual; or

(b)       the Commonwealth, so far as it employs, or usually employs, an individual; or

(c)a Commonwealth authority, so far as it employs, or usually employs, an individual; or

(d)a person so far as the person, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:

(i)        a flight crew officer; or

(ii)       a maritime employee; or

(iii)      a waterside worker; or

(e)a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or

(f)a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory.

1. It is abundantly clear that the Respondent, being an individual and a disability pensioner, is not a national system employer.

1. As a result, the Applicant is not covered by the general protections laws and is not eligible to make this application. The application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

L Gordon on her own behalf.
R Nielsen of Shand Taylor Lawyers for Sonya Cohen.

Hearing details:

2024.
By video:
May 20.

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