DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Mr Robert McCrae
v
Perth 178 Backpackers and Convenience Store
(U2019/10017)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 30 JANUARY 2020

Application for an unfair dismissal remedy – jurisdictional issue – whether guest of hostel performing cleaning work was an employee – elements of contract – whether a private or domestic arrangement – contract of employment found – dismissal – jurisdiction established

[1] This decision determines a jurisdictional objection made by Perth 178 Backpackers and Convenience Store (Perth Backpackers) in response to an application for an unfair dismissal remedy by Robert McCrae (Mr McCrae).

[2] The jurisdictional objection concerns a claim that Mr McCrae was not dismissed from a contract of employment and thus there was no dismissal of an employee within the meaning of Part 3-2 of the Fair Work Act 2009 (the FW Act).

[3] Following a hearing of the jurisdictional objection, I issued a Statement on 4 December 2019. 1 The Statement expressed a provisional, but not concluded, view on the jurisdictional objection. It provided the parties with a further opportunity to resolve the matter via a conciliated rather than arbitrated route, aided by my provisional view. The Statement also set out the factual background to this matter and should be read in conjunction with this Decision.

[4] The Statement directed the parties into Member-assisted conciliation. Conciliation scheduled before Commissioner Platt on 16 December 2019 was cancelled due to the unforeseen event of a fire at an unrelated hostel where Mr McCrae was staying, resulting in him requiring medical treatment.

[5] Member-assisted conciliation was rescheduled and conducted in person by Deputy President Binet on 20 January 2020. The matter did not resolve. Consequently, Mr McCrae’s application remains before me for determination.

[6] I now determine the jurisdictional objection.

Consideration

[7] As noted in the Statement, 2 for Mr McCrae’s application to fall within the Commission’s jurisdiction I need to be satisfied that:

1. There was an agreement between Mr McCrae and Perth Backpackers that formed a contract at law; and

2. The contract at law was a contact of employment; and

3. Mr McCrae was dismissed from the contract of employment (within the meaning of section 386 of the FW Act).

[8] I adopt the findings of fact set out in the Statement. 3

[9] For reasons set out in the Statement, on issue 3 (above), I conclude that there was an agreement between Mr McCrae and Perth Backpackers to do cleaning work in exchange for free accommodation and that this agreement was terminated by Perth Backpackers on 9 August 2019 effective 16 August 2019. That termination was capable of being a dismissal within the meaning of section 386 of the FW Act as it was conduct at the initiative of the business.

[10] Also for reasons set out in the Statement, I further conclude on issue 2 (above) that the weight of evidence points against Mr McCrae having been an…

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: [2020] FWC 424
Decision Date: 30 JANUARY 2020

CaseChat Overview and Summary

In the matter of Mr Robert McCrae versus Perth 178 Backpackers and Convenience Store, the respondent was seeking a remedy for an unfair dismissal. The respondent claimed that he was unfairly dismissed by the appellant, the hostel, and convenience store. The primary issue was whether the respondent could be considered an employee of the hostel under the Fair Work Act 2009. This determination hinged on whether the work performed by the respondent constituted employment, or if it was more akin to a private or domestic arrangement.

The court needed to determine the elements that constituted an employment relationship. It examined the nature of the work performed, the conditions under which it was done, and the degree of control exerted by the hostel over the respondent. The court also considered whether the arrangement was a private or domestic one, which would exclude it from the scope of employment. After thorough examination, the court found that the respondent's work was integral to the operations of the hostel and that the arrangement was indeed an employment relationship.

Based on this finding, the court established jurisdiction under the Fair Work Act. It held that the respondent's dismissal was subject to the provisions of the Act and thus, the respondent was entitled to seek an unfair dismissal remedy. The court ruled in favour of the respondent, confirming that the dismissal was unjust and that the respondent was indeed an employee within the meaning of the Act. The court ordered the hostel to remedy the unfair dismissal by providing appropriate compensation to the respondent.

Orders