Robert Hancock v Owners of Fairlawn Mews - Strata Plan 7175

[2013] FWC 8621

[2013] FWC 8621

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Hancock
v
Owners of Fairlawn Mews - Strata Plan 7175
(U2013/12466)

DEPUTY PRESIDENT MCCARTHY PERTH, 1 NOVEMBER 2013

Application for relief from unfair dismissal.

[1] This matter concerns an application for unfair dismissal remedy (the application) lodged by Mr Robert Hancock (the Applicant). The application identifies the Respondent as The Owners Council of 309 Harborne Street Glendalough WA c/- Exclusive Strata Management.

[2] Attached to the application is a letter to the Applicant from Exclusive Strata Management which states that the Applicant’s services at the complex (309 Harborne Street – Strata Plan 7175) (the Property) were no longer required. Also attached to the application are some communications from the Applicant addressed to “The Owners Council”.

[3] An Employer’s Response to the application for unfair dismissal (the Response) was launched under the signature of Suzanne Tracey, Strata Manager, Exclusive Strata Management. It stated that the legal name of the Respondent was Owners of Fairlawn Mews – Strata Plan 7175. The Respondent asserts that the Applicant is not covered by unfair dismissal laws and is not eligible to make the application. It also asserts that the Applicant was an independent contractor and not an employee. It was also stated that the application was frivolous and vexatious and had no reasonable prospect of success.

[4] On 24 October 2013, I wrote to the Applicant and informed him that in order for a person to be able to make an application for unfair dismissal under the Fair Work Act 2009 (the FW Act) the employer must be a National System Employer. I also explained in the letter the requirements of the FW Act for an employer to be classed as a National System Employer.

[5] The Applicant responded that his understanding was that he was employed by the Strata Company, Exclusive Strata Management. His response was to the effect that Exclusive Strata Management was a National System Employer.

[6] It is apparent from the application, the Employer’s Response and the information supplied by the Applicant and Exclusive Strata Management in response to my request for further information that the Applicant performed services and/or duties for “The Owners Council”. An Owners Council is typically a committee or controlling council for the management of properties separately owned and subject to a Strata Plan. An Owners Council typically would not be a National System Employer.

[7] The relationship between the Owners Council and Exclusive Strata Management appears to be another typical relationship between the management body, committee, or council usually established to manage the affairs for the Strata Owners. The application and the communications attached to the application make it clear that the Applicant performed duties for the Owners Council on behalf of the owners of properties subject to the Strata Plan. Whilst there may have been some communications with Exclusive Strata Management there is nothing that establishes an employment relationship. Exclusive Strata Management expressly deny there being an employment relationship.

[8] Whatever the relationship was, if any, it is safe to infer from all of the material before me that the Applicant is not protected from the unfair dismissal provisions of the FW Act with respect to the body that the application was directed at, namely, The Owners Council as it is clearly not a National System Employer.

[9] Furthermore, the Applicant in his later communication appears to assert that he was employed by Exclusive Strata Management implying he agrees that he was not employed by The Owners Council. In some circumstances it may be appropriate to vary an application to correctly identify the employer of the applicant. This is not one of those occasions. The employment status of the Applicant is disputed and the alleged employing entity also disputed.

[10] The application is therefore dismissed as the Respondent is not a National System Employer and as such the Applicant is not protected from unfair dismissal by the FW Act in respect for any relationship that there may have been between the Applicant and the Respondent.

DEPUTY PRESIDENT

Final written submissions:

Applicant, 24 October 2013

Respondent, 28 October 2013

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