Ms Jessica Dickson v Ms Susan Kovacs, Mr Felipe Cespedes - [2025] FWC 1218

[2025] FWC 1218

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Ms Jessica Dickson
v

Ms Susan Kovacs, Mr Felipe Cespedes

(C2024/7717)

DEPUTY PRESIDENT BUTLER

BRISBANE, 2 MAY 2025

Application to deal with contraventions involving dismissal – jurisdictional objection – whether applicant dismissed – whether applicant an employee – applicant not an employee – applicant dismissed – objection dismissed – matter to proceed to conciliation

Ms Jessica Dickson has applied for the Fair Work Commission (the Commission) to deal with a general protections dispute involving dismissal. The Respondents, Mr Felipe Cespedes and Ms Susann Kovacs, are a married couple. Mr Cespedes and Ms Kovacs hired Ms Dickson as a nanny for their two children, commencing in late January 2023.[1] The engagement came to an end on 5 October 2024.[2]
Mr Cespedes and Ms Kovacs have objected to the application on the basis that Ms Dickson was not an employee and was therefore not dismissed. This decision determines that objection.[3] For the reasons set out below I have decided to dismiss the objection.

Legislative framework

Part 3-1 of the Fair Work Act 2009 (Cth) (the Fair Work Act) provides general workplace protections, including in relation to workplace rights, freedom of association, and protection from discrimination. Various provisions prohibit a person from taking adverse action against another person for particular reasons,[4] in particular circumstances. The protections are not limited to adverse action taken by employers against employees. They apply in other situations as well, including in relation to some forms of action taken by principals against independent contractors.[5]
The prohibitions are serious, and the relevant subsections are civil remedy provisions.[6] The main compliance mechanism for contraventions of civil remedy provisions is an application to a court for orders.[7] Various persons affected by contraventions have standing to apply to the court. But there is a significant limitation applying specifically to applications about contraventions of the general protections part, where the intended applicant has been dismissed from their employment. Specifically, a person who is entitled to apply under section 365 for the Commission to deal with a dispute must not make a general protections court application in relation to that dispute unless:
·they have applied to the Commission first (other than in circumstances that are not presently relevant);[8]
·the Commission has issued a certificate to the effect that it is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful;[9]
·the court application is made within fourteen days after the certificate was issued (unless the court has granted an extension);[10] and
·the parties have not agreed to the Commission arbitrating the dispute.[11]

In general terms this means that applying to the Commission under s 365 is a precondition that must be met before a dismissed employee can take their matter involving the dismissal to court. There is no equivalent precondition for other general protections applications. For example, an independent contractor who alleges their principal…

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.

Continue reading Ms Jessica Dickson v Ms Susan Kovacs, Mr Felipe Cespedes

Details

AGLC: Ms Jessica Dickson v Ms Susan Kovacs, Mr Felipe Cespedes [2025] FWC 1218
Case: [2025] FWC 1218
Decision Date: 2 MAY 2025

CaseChat Overview and Summary

This case involved an application by Ms Jessica Dickson to the Fair Work Commission to deal with a general protections dispute involving her dismissal. The respondents, Mr Felipe Cespedes and Ms Susan Kovacs, objected to the application on the basis that Ms Dickson was not an employee and therefore not dismissed. The court had to decide whether Ms Dickson was an employee within the ordinary meaning of that term, as defined in the Fair Work Act 2009, and if so, whether she was dismissed. The court considered the totality of the relationship between Ms Dickson and the respondents, including the terms of their agreement, the control exercised by the respondents over Ms Dickson, and the manner in which the agreement was performed in practice. The court found that Ms Dickson was an employee and was dismissed by the respondents. The court dismissed the respondents' jurisdictional objection and the matter will proceed to conciliation.

Orders