Ngoc Le v Australia Post

[2019] FWC 3472

[2019] FWC 3472

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ngoc Le
v
Australia Post
(U2019/1562)

DEPUTY PRESIDENT KOVACIC CANBERRA, 21 MAY 2019

Application for relief from unfair dismissal – jurisdictional objection raised by the Respondent: the Applicant was not an employee – Applicant acknowledged during telephone mention and directions hearing that he was a contractor – Applicant not protected from unfair dismissal – application dismissed.

[1] Mr Ngoc Le (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 14 February 2019 under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by Australia Post (the Respondent) on 25 January 2019 was unfair.

[2] In its Form F3 – Employer Response to Unfair Dismissal Application the Respondent raised a jurisdictional objection to Mr Le’s application. Specifically, the Respondent contended that Mr Le was not an employee and that he was a Principal Contractor to it. The Respondent also noted that Mr Le in signing his unfair dismissal application described his Capacity/Position as “Principal Contract.”

[3] Mr Le’s application was listed for a telephone mention and directions hearing on 4 April 2019. Mr Le appeared at the hearing with the assistance of a translator arranged by the Commission. At that hearing, Mr Le voluntarily conceded that he was a contractor prompting the Commission to indicate that as a contractor he was not protected from unfair dismissal as a result of s.382 of the Act. In response to a question from the Commission as to whether in those circumstances he wished to discontinue his application, Mr Le indicated that he wished to seek advice from his lawyer before deciding how he wished to proceed in respect of his application. The hearing concluded on the basis that Mr Le was to advise the Commission of his position in that regard by no later than close of business on 10 April 2019, with the Commission indicating that in the absence of a response from Mr Le it would determine the Respondent’s jurisdictional objection based on the material presently before it. The Commission has received no further advice from Mr Le, despite several attempts to contact Mr Le by email and telephone.

[4] Section 382 of the Act sets out when a person is protected from unfair dismissal. Specifically, s.382 provides as follows:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.” (Underlining added)

[5] As is apparent from s.382 of the Act, for a person to be protected from unfair dismissal the person must inter alia be an employee. Given Mr Le’s statement at the telephone mention and directions hearing that he was engaged by the Respondent as a contractor, it is clear that he is not protected from unfair dismissal as he was not an employee at the time of his dismissal. Accordingly, Mr Le’s application is incompetent and must be dismissed. An order to that effect will be issued in conjunction with this decision.

Appearances:

N. Le on his own behalf.

A. Cunningham for the Respondent.

Telephone Hearing details:

Canberra.

2019

April 4.

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