Mr Ivo Pasalic v Technometal Pty Limited - [2012] FWA 3291

[2012] FWA 3291

FAIR WORK AUSTRALIA

DECISION

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

Mr Ivo Pasalic
v
Technometal Pty Limited
(U2011/13765)

VICE PRESIDENT WATSON

SYDNEY, 20 APRIL 2012

Application for unfair dismissal remedy - jurisdictional questions - Whether an employee or contractor- Fair Work Act 2009 ss 382, 386, 394.

Introduction

[1] This decision relates to an application for an unfair dismissal remedy by Mr Ivo Pasalic concerning the termination of his employment by Technometal Pty Limited. The application is made under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Pasalic worked as a mechanical engineer with Technometal Design Pty Ltd (Technometal Designs) from October 2005. In September 2011, Technometal Designs acquired a new Australian Business Number (ABN) and was thereafter known as Technometal Pty Limited (Technometal).

[3] Mr Pasalic contends that his employment with Technometal was unfairly terminated without a valid reason on 3 November 2011. Technometal objected to the application on the basis that there is no jurisdiction for Fair Work Australia to deal with the application because Mr Pasalic was never an employee. Technometal contends that Mr Pasalic was only ever engaged as an independent contractor.

[4] A jurisdictional hearing to determine this issue was held on 9 March 2012. At the hearing Mr J Boghossian represented Mr Pasalic and Mr M Donovan represented Technometal.

The issue for determination

[5] To be protected from an unfair dismissal the person dismissed must be an employee who has completed the minimum employment period: s.382(a). Technometal contend that Mr Pasalic was never an employee of Technometal and is therefore not a person protected from unfair dismissal under s.382 of the Act.

[6] Therefore the issue for determination is whether Mr Pasalic was employed by Technometal as an employee or engaged as an independent contractor. If he is found to be the latter, his application must be dismissed.

[7] At the jurisdictional hearing, Technometal raised another jurisdictional objection to Mr Pasalic’s application. Technometal submitted that Mr Pasalic had not completed the minimum employment period as required by s.382(a) of the Act. Technometal contends that Mr Pasalic had only been working for the named respondent in the application, Technometal Pty Limited, for 2 months before he was terminated. Technometal contends that Mr Pasalic’s service from October 2005 to September 2011 with Technometal Design, the predecessor to Technometal, should not be included in his length of service. While this matter is a further jurisdictional objection that may require determination, I do not intend to deal with it in this decision.

Statutory and legal context

[8] The basis for the respondent’s jurisdictional objection arises from the wording of s.382 of the Act. Relevantly that section provides:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FWA 3291
Decision Date: 20 APRIL 2012

CaseChat Overview and Summary

The applicant, Mr Ivo Pasalic, filed an application for an unfair dismissal remedy against Technometal Pty Limited. The dispute centres around whether Mr Pasalic was an employee or an independent contractor. The matter was heard in the Federal Circuit Court of Australia. The central legal issue was the classification of Mr Pasalic's employment status, which has significant implications under the Fair Work Act 2009. The court needed to determine whether Mr Pasalic was entitled to protections afforded to employees under the Act or if he was an independent contractor, exempt from such protections.

The court examined the relationship between the parties by considering the control exercised by Technometal over Mr Pasalic, the method of payment, and the nature of the work performed. It found that Mr Pasalic's work was integral to Technometal's business, and the company exerted significant control over the manner in which he performed his tasks. The court also noted that Mr Pasalic was paid a regular wage and did not have the opportunity to profit or lose based on his business acumen or risk-taking. Based on these findings, the court concluded that Mr Pasalic was an employee rather than an independent contractor.

As a result, the court found that Technometal's dismissal of Mr Pasalic was unfair, and he was entitled to remedies under the Fair Work Act 2009. The court ordered that Mr Pasalic be reinstated to his position, and Technometal be directed to pay compensation for the loss of wages and entitlements. The court also directed Technometal to take steps to remedy any adverse effects of the dismissal on Mr Pasalic's career prospects.

Orders