National Tertiary Education Industry Union v Royal Melbourne Institute of Technology T/A RMIT University, RMIT Training Pty Ltd T/A RMIT Training

[2023] FWC 1729

[2023] FWC 1725

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Arash Sharafi
v

The Trustee For King St Dental Unit

trust

(U2023/3912)

COMMISSIONER P RYAN SYDNEY, 14 JULY 2023

Application for an unfair dismissal remedy

Introduction and Background

1. On 7 May 2023, Mr Sharafi (Applicant) filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act) (Application). By the Application, Mr Sharafi alleges he was unfairly dismissed from his employment as a dentist with The Trustee for King Street Dental Unit Trust (Respondent). The Application does not specify a date the alleged dismissal took effect.

1. In its Form F3, Employer Response, the Respondent objects to the Application on two grounds:

(i)That the Applicant was engaged as an independent contractor; and

(ii)Irrespective of (i), that it did not dismiss the Applicant.

1. The matter was initially listed for a conciliation conference, however, the Applicant failed to attend.

1. The matter was then referred to the Chambers of Vice President Catanzariti for allocation. Prior to the allocation of the matter to my Chambers, the Chambers of Vice President liaised with the parties in relation to some case management matters. In response to the matters raised by the Chambers of Vice President Catanzariti the Applicant sent two emails (23 June 2023 and 26 June 2023). In those responses, the Applicant advised, inter alia, that he was engaged as a “contractor” or “contractor dentist” and that he was not an employee.

1. The matter was subsequently allocated to my Chambers for determination. I listed the matter for a case management and directions hearing on 4 July 2023. During the course of the case management and directions hearing, I raised the issue of whether the Applicant was engaged as an employee or independent contractor with reference to the Applicant’s email correspondences dated 23 and 26 June 2023. The Applicant confirmed that he was engaged as an independent contractor and that he does not dispute that.

1. Having regard to the Applicant’s concessions that he was not employed by the Respondent, but was engaged as an independent contractor, I informed the parties that it was my provisional view that the Application does not have any reasonable prospects of success and provided the Applicant with 7 days to file any submissions as to why the Application should not be dismissed.

1. Following the case management and directions hearing my Chambers issued directions to the parties as follows:

1.   Noting that the Applicant agrees that he was an independent contractor and was not employed by the Respondent, the Applicant is directed to file with the Fair Work Commission and serve on the Respondent by no later than 4:00pm on Tuesday 11 July 2023, any submissions as to why the Unfair Dismissal Application (U2023/3912) should not be dismissed on the basis that it does not have any reasonable prospects of success pursuant to s.587 of the Fair Work Act 2009.

2.   In the event that no submissions are filed by 4:00pm on Tuesday 4 July 2023, the Fair Work Commission may proceed to determine the matter on the material currently before it without further notice to the parties.

1. The Applicant did not file any submissions in accordance with the directions.

Legislative Provisions

1. 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 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.”

Consideration

1. The Applicant does not dispute that he was engaged as an independent contractor. Indeed, the Applicant stated that on no less than five occasions during the case management and directions hearing, in addition to confirming that position in writing to the Fair Work Commission on 23 and 26 June 2023.

1. Furthermore, the Applicant has failed to provide any submissions as to why the Application should not be dismissed on the basis that it does not have any reasonable prospects of success pursuant to s.587 of the Fair Work Act 2009.

1. As the Applicant was not employed by the Respondent, the Fair Work Commission does not have jurisdiction to determine the merits of the Application.

1. Accordingly, I confirm my provisional 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

1. The Application is dismissed. An Order to that effect will be issued with this decision.

COMMISSIONER
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