Miss Karen Burton v P R West & Associates Pty Ltd
[2012] FWA 6123
•19 JULY 2012
[2012] FWA 6123 |
|
EX TEMPORE DECISION |
Fair Work Act 2009
s.394—Application for unfair dismissal remedy
Miss Karen Burton
v
P R West & Associates Pty Ltd
(U2012/6693)
DEPUTY PRESIDENT SMITH | MELBOURNE, 19 JULY 2012 |
Extension of time granted in PR526013.
[1] The following decision, now edited, was issued during proceedings conducted on 6 July 2012.
[2] This is an application by Ms Karen Burton for an extension of time pursuant to s.394(2)(b) of the Fair Work Act 2009. The applicant, Ms Burton, argues that she took all reasonable steps to lodge the application in time, including seeking to deal with the e-filing on the Fair Work Australia web site but in the result, whilst sending her application in what she thought was in plenty of time, it did not arrive in the office at Fair Work Australia until one day late, being 30 March 2012. There is no issue that Ms Burton didn’t become aware of what was said to be the dismissal as soon as it was effected and that she has taken significant steps to challenge that dismissal. If I extended time there is no prejudice to the employer in relation to the delay.
[3] As to the merits of the application, well, the principal area goes probably to whether or not Ms Burton was an independent contractor or an employee. This also is the reason why Mr West has sought to dismiss the application on the basis of it being vexatious and frivolous. The issue of whether or not a person is an employee or an independent contractor is a question of fact, and how the parties describe it may or may not assist that determination of fact.
[4] There are two decisions that the parties may wish to consider when they are looking at this matter. One involves Bearings 1 and that’s a decision of the Australian Industrial Relations Commission, an appeal decision presided over by the then Vice President Ross. The second decision that they may wish to examine is a decision called Vabu,2 a decision in the High Court of Australia. In essence, those matters ask the question about whether or not the person was running a business of their own. This is going to require evidence and will be integral to the hearing of the matter should an extension of time be granted. Therefore, I am unable to conclude one way or the other on the merits of the application until further evidence is heard.
[5] Finally, in regards to fairness between the person and other persons in a similar position, it would not be unfair to extend time. I propose to extend time by the additional day which then permits the application to be heard. It will be referred to a member of the Tribunal for hearing and determination and an issue that will be looked at closely will be the question of whether or not a contract of employment or a contract of service existed between the parties. In this connection I note in passing that, to the extent that Ms Burton did work for other people in relation to her business, this may be an indicator in favour of her running her own business, but I make no finding in relation to that matter.
[6] An order has been issued extending time until the date of lodgement. 3
COMMISSIONER
Appearances:
K. Burton the applicant.
P. West on behalf of P R West & Associates Pty Ltd.
Hearing details:
2012.
Melbourne:
July, 6.
1 Bearings Incorporated (Australia) Pty Ltd, Dec 516/99 M Print R4924, (2 July 1999) per Ross, VP, Polites SDP, Foggo C
2 Hollis v. Vabu Pty Ltd, [2001] HCA 44, (9 August 2001)
3 PR526013, (6 July 2012), Smith DP
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