Malcom Rogers v York Territory Realty

[2017] FWC 6019

[2017] FWC 6019

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Malcom Rogers
v
York Territory Realty
(U2017/6995)

COMMISSIONER SIMPSON BRISBANE, 4 DECEMBER 2017

Application for an unfair dismissal remedy – Employee employed for less than 12 months – Applicant dismissed at employer’s initiative – Application dismissed

[1] This matter concerns an application under s.394 of the Fair Work Act 2009 (the Act) by Mr Malcom (Mick) Rogers who alleges that the termination of his employment with York Territory Realty (York) was unfair.

[2] Mr Rogers commenced employment at York on 24 August 2016 as a Home Finder until his employment ended on 9 June 2017, a period approximating 10 months. Mr Rogers was employed on a full time basis, and worked out of an office in Toowoomba.

[3] It is not in dispute that Mr Rogers was dismissed at the initiative of York.

[4] Mr Rogers claims the dismissal was unfair as the reasons provided by York are not accurate or valid, that certain payments for expenses and commissions were not paid, that no notice was given, and that York did not follow the Small Business Code steps for termination. York raised an objection on the basis that Mr Rogers has not satisfied the minimum employment period of 12 months.

[5] Mr Rogers then contended that York was not a small business as it had 15 people employed at the time of his dismissal. York countered that contention by claiming two of the 15 people listed by Mr Rogers as employees, specifically Mr Harvey and Mr Harriman, were not employees but instead were independent contractors.

[6] Directions were issued on 17 October 2017 requiring York and Mr Rogers to file submissions and witness statements relating to whether or not Mr Harvey and Mr Harriman were employees or independent contractors by 3 November 2017. The directions provided guidance in the form of listing the indicia to be relied upon in determining the nature of the engagement of the persons in question.

[7] On 27 October 2017 York responded to the directions issued 17 October 2017. York provided statements from their accountant, both Mr Harvey and Mr Harriman, and submissions from Mr Mark Dietz attesting to the nature of the engagement of the persons in question being one of independent contract work.

[8] Mr Rogers provided no response to the directions issued 17 October 2017 despite further contact from the Fair Work Commission on 15 November 2017 encouraging him to advise chambers by 5:00PM 16 November 2017 if he intended to file any further material.

[9] Ample opportunity and guidance to submit materials was afforded to both Mr Rogers and York. Only York elected to submit further materials per the 17 October 2017 directions.

[10] With the evidence available and on the balance of probabilities, Mr Harvey and Mr Harriman were independent contractors at the time of Mr Rogers’ dismissal. Therefore, York had less than 13 employees at the time of Mr Rogers’ dismissal. With less than 15 employees, York is a small business employer.

[11] As Mr Rogers was an employee of a small business employer for approximately 10 months at the time of his dismissal, he is not protected from unfair dismissal.

[12] Therefore I am required to dismiss the application without consideration of the matter any further.

COMMISSIONER

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