[2020] FWC 6679

The attached document replaces the document previously issued with the above code on 11 December 2020.

Corrected paragraph numbering.

Associate to Commissioner McKinnon

Dated 11 December 2020

[2020] FWC 6679

FAIR WORK COMMISSION

DECISION

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

Jannine Russell
v
Natasha Bakerzis
(U2020/10782)

COMMISSIONER MCKINNON

MELBOURNE, 11 DECEMBER 2020

Application for an unfair dismissal remedy – whether employee – whether protected from unfair dismissal – whether consistent with Small Business Fair Dismissal Code.

[1] Natasha Bakerzis is a young woman with disabilities who qualifies for support under the National Disability Insurance Scheme (NDIS). She lives with her grandmother who is severely disabled. Her aunt, Marina Quinlan, has power of attorney and is legally responsible to represent her interests.

[2] Jannine Russell met the family of Ms Bakerzis in 2017 when she was employed by agency Mecwacare to perform in home aged care services for Ms Bakerzis’ grandmother. Approximately 12 months after commencing in this role, Ms Quinlan asked Ms Russell if she was interested in separately providing personal care services to Ms Bakerzis under the NDIS. Ms Russell said she was and began providing care for Ms Bakerzis in either October or December 2018.

[3] According to Ms Russell, the arrangement worked to the satisfaction of all parties until 21 July 2020 when she received a telephone call from Ms Quinlan accusing her of complaining to Mecwacare about her duties. Ms Russell denied making a complaint and Ms Quinlan insisted that she had. The following day, Ms Russell received an email from Ms Quinlan advising her that her services were no longer required.

[4] Ms Russell applied for an unfair dismissal remedy on 8 August 2020, within the statutory 21 day timeframe. The question is whether Ms Russell was an employee of Ms Bakerzis (through Ms Quinlan) and if so, whether she was protected from unfair dismissal. There is then the separate question of whether the dismissal was consistent with the Small Business Fair Dismissal Code, because if Ms Russell was an employee of Ms Bakerzis, she was the only one.

[5] For the reasons that follow, I find that Ms Russell was an employee of Ms Bakerzis who was protected from unfair dismissal because she was a casual employee engaged on a regular and systematic basis with a reasonable expectation of continuing employment. Her dismissal was consistent with the Small Business Fair Dismissal Code.

Was Ms Russell an employee?

[6] Whether a person is an employee of a business or an independent contractor is commonly resolved by reference to a multifactorial test endorsed in Kimber v Western Auger Drilling Pty Ltd 1(Kimber). At the heart of the inquiry is whether, at the relevant time, the person was the servant of another in its business or was instead carrying on a business on their own behalf.

Control over the manner in which work is performed, place of work, hours of work and the like.

[7] There was…

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 6679
Decision Date: 11 DECEMBER 2020

CaseChat Overview and Summary

In the matter of Jannine Russell v Natasha Bakerzis, Commissioner McKinnon considered whether Ms Russell, an in-home aged carer for Ms Bakerzis, was an employee protected from unfair dismissal, and if her dismissal was consistent with the Small Business Fair Dismissal Code. The court found that Ms Russell was an employee and was protected from unfair dismissal, but her dismissal was consistent with the Code.

The central issue was whether Ms Russell was an employee of Ms Bakerzis, and thus protected from unfair dismissal. The court found that Ms Russell was an employee based on several factors. She worked under the general direction of Ms Quinlan, Ms Bakerzis' power of attorney, and was paid on an hourly basis with income tax deducted. The court also found that Ms Russell was protected from unfair dismissal as her employment met the criteria of being on a regular and systematic basis with a reasonable expectation of continuing employment.

The second issue was whether Ms Russell's dismissal was consistent with the Small Business Fair Dismissal Code. The court found that Ms Quinlan had reasonable grounds to believe that Ms Russell's conduct, including making an anonymous complaint to Mecwacare and denying it, was sufficiently serious to warrant immediate dismissal. The court concluded that Ms Quinlan's belief was based on reasonable grounds, and therefore the dismissal was consistent with the Small Business Fair Dismissal Code.

In conclusion, the court found that Ms Russell was an employee of Ms Bakerzis who was protected from unfair dismissal, but her dismissal was consistent with the Small Business Fair Dismissal Code. The application for an unfair dismissal remedy was dismissed.

Orders