Mr Daniel Crimmins v BGC Residential Pty Ltd

[2016] FWC 4213

[2016] FWC 4213

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Daniel Crimmins
v
BGC Residential Pty Ltd
(U2016/6494)

COMMISSIONER CLOGHAN PERTH, 29 JUNE 2016

Application for relief from unfair dismissal.

[1] On 27 April 2016, Mr Daniel Crimmins (Mr Crimmins or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal, pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The Respondent named in the application is BGC Residential Pty Ltd trading as BGC Residential (Respondent).

[3] The Respondent’s response to the application was received by the Commission on 6 May 2016. In its response, the Respondent asserts that the Applicant was not dismissed from employment. However, the Respondent did terminate a Contractor Agreement with Evedanly Consulting Pty Ltd on 4 April 2016 to take effect on 10 April 2016. Further, the Respondent declared, in its response, that Mr Crimmins was not an employee or that he had been dismissed.

[4] As part of Mr Crimmins’ application, he attached a copy of a “Contractor Agreement Home Building Sales Consultant” between BGC Residential Pty Ltd and Evedanly Consulting Pty Ltd. The Contractor Agreement sets out the relationship of the parties at Clause 21 which states, among other things, that “nothing in this agreement constitutes a relationship of employer and employee”.

[5] Mr Crimmins also attached a copy of a communication he received from the Respondent giving notice of termination of the Contractor Agreement effective from 10 April 2016.

[6] On 16 May 2016, my Associate provided a Notice of Listing to both parties of a conference, in person, on 8 June 2016. Mr Crimmins did not attend the conference in person but participated by telephone.

[7] At the conclusion of the conference, I advised Mr Crimmins that, in view of the documentation I had received and his submission at the conference, I would give him the opportunity, pursuant to paragraph 396(b) of the FW Act, to make a submission that he is protected from unfair dismissal in accordance with the FW Act.

[8] On 9 June 2016, I issued Directions to both parties to enable the Commission to determine whether Mr Crimmins was protected from unfair dismissal pursuant to s.396(b) of the FW Act. Footnotes to the Directions state:

• The Applicant and Employer must comply with these directions.



• The Applicant is advised that should he not comply with these Directions, the Employer may make application to have the Applicant’s unfair dismissal application dismissed pursuant to s.399A of the FW Act.

[9] Mr Crimmins has failed to provide the Respondent with his Statement of Facts, witness statement (if any) and any documentary material on 24 June 2016 in accordance with the Direction in paragraph [10].

[10] On 27 June 2016, the Respondent submitted that the Commission should dismiss Mr Crimmins’ application pursuant to s.399A of the FW Act. In addition, the Respondent submitted that Mr Crimmins failed to attend the conference, in person, on 8 June 2016 without sufficient reason and that the Applicant has made no genuine attempt to comply with the provisions of the FW Act.

[11] The Applicant has not contacted the Commission since the conference on 8 June 2016.

[12] I am satisfied, having considered all the circumstances of the application, that it should be dismissed in accordance with s.399A(1)(b) of the FW Act. An Order to this effect is attached to this Decision.

COMMISSIONER

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