Lesley Ann Gordon v Sonya Cohen Summary

[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.

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).

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.

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).

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.

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.

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?

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.

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

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.

Printed by authority of the Commonwealth Government Printer

The Fair Work Commission (FWC) considered an application by Lesley Ann Gordon (Applicant) against Sonya Cohen (Respondent) under section 365 of the Fair Work Act 2009. The Applicant sought to have the Commission address a general protections dispute involving her alleged dismissal by the Respondent. The Respondent opposed the application on the grounds that the Applicant was not dismissed within the meaning of section 386 of the Act, as she was not an employee, and the Respondent was not a national system employer. The Respondent, a disability pensioner, had entered into a service agreement with the Applicant to provide in-home support, with payments made through the National Disability Insurance Scheme (NDIS).

The central legal issues before the Commission were whether the Applicant was dismissed within the meaning of section 386 of the Act and whether the Respondent was a national system employer. The Commission examined the definition of a national system employer under section 14 of the Act, which includes constitutional corporations, the Commonwealth, Commonwealth authorities, certain types of employers engaged in constitutional trade or commerce, and bodies corporate or persons carrying on activities in a Territory. The Commission concluded that the Respondent, being an individual and a disability pensioner, did not fall within any of these categories and was therefore not a national system employer. As a result, the Applicant's claim under the general protections laws was dismissed.

The Commission noted that the Applicant had been given ample opportunities to address the jurisdictional objections and to provide material supporting her claim that the Respondent was a national system employer. However, the Applicant failed to comply with the directions issued by the Commission and did not file any relevant material. Consequently, the application was dismissed for lack of jurisdiction. The decision underscores the importance of meeting procedural requirements and the necessity of fulfilling the criteria to establish the Commission's jurisdiction in such cases.

Lesley Ann Gordon v Sonya Cohen

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established