Miriam Wallace v KDR Victoria Pty Ltd Summary

[2024] FWC 1647

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Miriam Wallace
v

KDR Victoria Pty Ltd and others

(C2024/2941)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 24 JUNE 2024

Section 365 – jurisdictional objection – application dismissed

The following is an edited version of a decision given on transcript today. Miriam Wallace has made an application under s 365 of the Fair Work Act 2009 (Act). The respondent, KDR Victoria Pty Ltd (KDR), objects to the application on the ground that it did not employ Ms Wallace, and therefore did not dismiss her. It is not in dispute that Ms Wallace was employed by Charterhouse Recruitment Pty Ltd (CR), and that CR deployed her to perform work for KDR pursuant to a contract between the two companies. On 17 April 2024, KDR told CR to cease using Ms Wallace to perform the work. The next day, CR dismissed her.

Section 365 states that if a person has been dismissed and alleges that the dismissal contravened Part 3-1, the person may apply to the Commission to deal with the dispute. The section contemplates a dismissal by the person’s employer (see s 386), and an allegation that the employer thereby contravened Part 3-1. Ms Wallace does not alleged that CR contravened the Act. Her application is against KDR, which did not employ her. It is not a claim that can be made under s 365 of the Act. The Commission has no power to deal with it. KDR’s objection is upheld. The application is dismissed.

DEPUTY PRESIDENT

Hearing details:

2024
Melbourne
24 June

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Miriam Wallace has brought an application against KDR Victoria Pty Ltd and others under section 365 of the Fair Work Act 2009, seeking to address what she claims was an unfair dismissal. Ms Wallace, who was employed by Charterhouse Recruitment Pty Ltd (CR), was deployed to perform work for KDR under a contractual arrangement between CR and KDR. KDR directed CR to cease using Ms Wallace on 17 April 2024, and CR dismissed her the following day. KDR objected to Ms Wallace's application on the basis that it did not employ her and, therefore, did not dismiss her, and hence the Commission lacks jurisdiction to hear the matter.

The primary legal issue before the Deputy President was whether the Commission had jurisdiction to hear Ms Wallace's application under section 365 of the Fair Work Act. Section 365 allows an employee to apply to the Commission if they believe they have been dismissed in a manner that contravenes Part 3-1 of the Act. However, this section explicitly refers to a dismissal by the employee’s employer. Given that Ms Wallace was employed by CR, not KDR, and CR was the entity that dismissed her, the court had to determine if the application could still proceed under section 365 against KDR.

The Deputy President found that since KDR did not directly employ Ms Wallace, it did not dismiss her. The application, therefore, did not fall within the scope of section 365, which pertains to dismissals by an employer. Consequently, the Commission did not have the jurisdiction to hear Ms Wallace's application against KDR. The Deputy President upheld KDR's jurisdictional objection and dismissed Ms Wallace's application.

Miriam Wallace v KDR Victoria Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established