Mark Potter v Jet Couriers Pty Ltd Bayswater T/A Jet Couriers

[2016] FWC 5263

[2016] FWC 5263

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Potter
v
Jet Couriers Pty Ltd Bayswater T/A Jet Couriers
(U2016/2932)

COMMISSIONER RYAN MELBOURNE, 2 AUGUST 2016

Application for relief from unfair dismissal.

[1] Mr Potter (the Applicant) has made an application for an unfair dismissal remedy. Mr Potter’s employment was terminated by Jet Couriers Pty Ltd Bayswater (the Respondent) on 10 June 2016.

[2] The Respondent objects to the application on the basis that Mr Potter was not an employee of the Respondent but was at all times an independent contractor.

[3] As per the normal procedure, this application was programmed for hearing in relation to the jurisdictional objection and the substantive application to be heard together on 8 and 9 September 2016.

[4] This decision relates to an application by the Respondent’s legal representative, Macpherson+Kelley Lawyers, for the Fair Work Commission to deal only with the Respondent’s jurisdictional objection at the scheduled hearing and to not require the Respondent to prepare and file material in relation to the substantive application, nor list the merits hearing until, and if, such time as the jurisdictional objection is dismissed.

[5] Following a telephone mention of the parties on 26 July 2016 I directed the Respondent to provide to the Commission some indication of its response to the unfair dismissal application. This was necessary as the Respondent’s Form F3 Employer's Response to Application for Unfair Dismissal Remedy contained nothing but its jurisdictional objection. The Commission then provided the Applicant with an opportunity to further respond to the material filed by the Respondent.

[6] A further written submission was received from Macpherson+Kelley Lawyers on 27 July 2016. Unfortunately this submission still did not provide any details of the nature of the Respondent’s case in opposition to the substantive application.

[7] The purpose of directing the Respondent to file further details of its response to the substantive application was to enable me to properly determine whether the issues around the merits of the application were of such a substantial nature that they justified splitting the matter into two hearings: the jurisdictional hearing and the substantive merits hearing.

[8] There is nothing before me which suggests that there is any necessity to split the jurisdictional matter away from the substantial matter.

[9] The Applicant objects to any change to the programming of this matter and argues that any change would extend the time taken to conclude this matter.

[10] Having considered the views of both sides in this matter, I determine not to make any alteration to the programming of this matter. The directions issued by the Commission on
1 July 2016 stand.

COMMISSIONER

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