Rima Das v Udemy Australia Pty Ltd - [2024] FWC 642

[2024] FWC 642

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Rima Das
v

Udemy Australia Pty Ltd

(U2023/6316)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 12 MARCH 2024

Application for an unfair dismissal remedy – jurisdictional objection – Dispute as to whether Applicant covered by the Educational Services (Post Secondary) Award 2020 – Applicant not covered and therefore not a person protected from unfair dismissal – Application dismissed.

On 12 July 2023, Ms Rima Das (Applicant) applied to the Fair Work Commission under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, having been dismissed from her employment with Udemy Australia Pty Ltd (Respondent) on 29 June 2023.

In the Form F3 – Employer response to unfair dismissal application (Form F3) filed by the Respondent, the jurisdictional objection that the Applicant’s annual rate of earnings was more than the high income threshold of $167, 500 was raised, with the accompanying assertion that she was therefore not a person protected from unfair dismissal when notified of her dismissal.

At the hearing in relation the jurisdictional objection, the Applicant sought permission to be represented by Mr Dircks and the Respondent sought permission to be represented by Mr Fawcett. Permission to be so represented was granted to both parties having regard to s.596(2)(a) of the Act.

Section 382 of the Act prescribes in what circumstances a person is protected from unfair dismissal:

“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.”

There is no dispute that the Applicant had completed the minimum employment period (s.382(a)) or that her annual rate of earnings exceeded the applicable high income threshold of $167,500 (s.382(b(iii)). Nor is it claimed that an enterprise agreement applied to the Applicant in relation to her employment (s.382(b)(ii)). The issue in dispute is whether the Applicant was covered by the Educational Services (Post Secondary) Award 2020 (the Award) when notified of her dismissal on 29 June 2023. If I find that this was the case, s.382(b)(i) applies and the Applicant was protected from unfair dismissal.

There is no dispute that the Applicant held the position of Manager Emerging Markets at the material time pursuant to an employment contract dated 17 November 2021.[1] Clause 2 of the employment contract included the text:

“A modern award may apply to your employment. Modern awards may vary from time…

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: [2024] FWC 642
Decision Date: 12 MARCH 2024

CaseChat Overview and Summary

In the matter of Rima Das v Udemy Australia Pty Ltd, Deputy President Clancy dismissed the Applicant’s application for an unfair dismissal remedy, finding that she was not a person protected from unfair dismissal at the time of her dismissal on 29 June 2023. The Applicant, Ms Rima Das, had applied to the Fair Work Commission for a remedy under s.394 of the Fair Work Act 2009, claiming she was unfairly dismissed by Udemy Australia Pty Ltd, the Respondent. The Respondent raised a jurisdictional objection, contending that the Applicant’s annual rate of earnings exceeded the high income threshold of $167,500 and that she was therefore not a person protected from unfair dismissal when notified of her dismissal. The Applicant argued that the Respondent was an employer in the post-secondary educational services industry and that she was therefore covered by the Educational Services (Post Secondary) Award 2020. The Deputy President considered whether the Respondent was an employer in the post-secondary educational services industry by determining the substantial character of the Respondent’s business. The Deputy President concluded that the Respondent was not an employer in the post-secondary educational services industry, finding that it operated a technology business providing an online platform capable of storing content that can be accessed upon purchase. The Deputy President further found that the Applicant was not a person protected from unfair dismissal and dismissed the Applicant’s application.

The decision highlights the importance of determining the industry in which an employer operates when assessing whether a modern award applies to an employee. The decision also provides guidance on the principles to be applied when determining whether a business is in a particular industry, including the need to examine the substantial character of the business and the nature of its undertaking.

Orders