Ms Kay Schafer v The Nest Community Inc
[2024] FWC 1557
•14 JUNE 2024
| [2024] FWC 1557 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Kay Schafer
v
The Nest Community Inc.
(C2024/2806)
| COMMISSIONER P RYAN | SYDNEY, 14 JUNE 2024 |
Application to deal with contraventions involving dismissal
Introduction and Background
Ms Kay Schafer (Applicant) made an application for the Fair Work Commission (Commission) to deal with a dismissal dispute pursuant to s.365 of the Fair Work Act 2009 (FW Act) on 29 April 2024 (Application).
In the Application, the Applicant states that she experienced unfair, unjust and unreasonable treatment” in being dismissed from her volunteering role with The Nest Community Inc (Respondent) because she exercised a workplace right.
In its Form F8A Response, the Respondent objected to the Application on the basis that that the Applicant was not an employee and therefore, was not dismissed within the meaning of s.386 of the FW Act.
The matter was subsequently allocated to my chambers to determine the Respondent’s jurisdictional objection.
On 27 May 2024, I instructed my Associate to send correspondence to the parties which:
· Referred to both parties’ characterisation of the Applicant’s role as a volunteer;
· Provided a link to the General Protections Benchbook and ss.12 and 386 of the FW Act;
· Noted that only employees who are dismissed are eligible to make an application pursuant to s.365 of the FW Act; and
· Requested the Applicant to confirm whether she wished to proceed with the Application.
On 31 May 2024, the Applicant sent correspondence to my Chambers expressing disappointment that volunteers are not covered by “Australian unfair dismissal laws” but did not confirm whether she wishes to proceed with the Application or was withdrawing the Application.
Later that day, I instructed my Associate to send further correspondence to the parties requesting the Applicant confirm whether she is withdrawing the Application.
On 3 June 2024, the Applicant left a voicemail message with my Chambers in which she acknowledged she was a volunteer and that volunteers are not eligible to make a dismissal claim but she did not want to withdraw the Application.
On 7 June 2024, I instructed my Associate to send the following correspondence to the parties:
Dear parties,
RE: C2024/2806 - Ms Kay Schafer v The Nest Community Inc.
I refer to the above matter and the email correspondence below.
In response to that correspondence, the Applicant has left a voicemail message with the Chambers of Commissioner Ryan stating that although she has been advised she is ineligible to apply because she is a volunteer, she does not want to withdraw the application.
Commissioner Ryan provides the following correspondence and directions to the parties:
1. It is apparent from the application, the response, and the email correspondence below that the Applicant accepts that she was a volunteer and not an employee.
2. A jurisdictional prerequisite to an application pursuant to s.365 of the Fair Work Act 2009 (FW Act), is that a person was an employee and dismissed from that employment (see John Grass v NSW Chinese Tennis Association Inc [2021] FWCFB 3443 at [9]-[17]).
3. Having regard to the application and the subsequent correspondence between the Applicant and my chambers in which the Applicant repeatedly acknowledges that she was a volunteer and not an employee, it is my provisional view that the application in proceedings C2024/2806 has no reasonable prospects of success and should be dismissed on that basis (see s.587 of the FW Act).
4. However, prior to making any final decision, I will provide the Applicant with an opportunity to provide any submissions in response to my provisional view that the application be dismissed. The Applicant is directed to file those written submissions by email to my Chambers and provide a copy to the Respondent by no later than 4:00pm on Wednesday 12 June 2024. The Respondent is not required to file any material at this stage.
5. If, in the alternative to providing written submissions, the Applicant wishes to discontinue the application, the applicant can do so by filing the attached Form F50 – Notice of discontinuance.
The Applicant did not respond to that correspondence.
Legislative Provisions
Section 365 of the FW Act provides as follows:
365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
The word “dismissed” is defined in s.12 of the FW Act and takes its meaning from s.386 of the FW Act.
Section 386 of the FW Act provides as follows:
Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.
Section 587 of the FW Act provides as follows:
587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.
The words, “[w]ithout limiting when FWC may dismiss an application” at the commencement of s.587(1) of the FW Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c)
Consideration
The Applicant has repeatedly acknowledged that she was engaged by the Respondent as a volunteer and was not an employee.
It is well established that a person who is not in an employment relationship cannot be dismissed within the meaning of s.386 of the FW Act.[1]
Accordingly, I confirm my provisional view that the Application does not have any reasonable prospects of success and dismiss the Application pursuant to s.587(1)(c) of the FW Act.
Disposition
The Application is dismissed. An Order to that effect will be issued with this decision.
COMMISSIONER
[1] John Grass v NSW Chinese Tennis Association Inc [2021] FWCFB 3443 at [9]-[17].
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