STATEMENT

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Robert McCrae
v
Perth 178 Backpackers and Convenience Store
(U2019/10017)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 4 DECEMBER 2019

Application for an unfair dismissal remedy – jurisdictional issue – whether guest of hostel performing cleaning work was an employee – Statement expressing provisional view to assist parties – matter referred to Member-assisted conciliation

[1] In order to facilitate conciliation, this Statement expresses a provisional but not concluded view on whether Mr Robert McCrae (Mr McCrae) was, for the purposes of Part 3-2 of the Fair Work Act 2009 (the FW Act), and employee of the respondent business.

[2] On 6 September 2019 Mr McCrae applied to the Fair Work Commission (the Commission) under section 394 of the FW Act for an unfair dismissal remedy against Perth 178 Backpackers and Convenience Store (Perth Backpackers).¹ He claims to have been unfairly dismissed on 9 August 2019 effective 16 August 2019.

[3] Perth Backpackers oppose the application.

[4] A preliminary issue arose for determination. Perth Backpackers contend that Mr McCrae was not employed under a contract of employment. It says that he was a guest of the hostel who performed some domestic work. It says that the business was not Mr McCrae’s employer and there was no dismissal “from employment” within the meaning of section 386 of the FW Act.

[5] Mr McCrae’s application has not been the subject of conciliation. Perth Backpackers exercised its right to have the jurisdictional issue heard before conciliation was conducted.

[6] Directions were issued by the Commission on 15 and 31 October 2019.

[7] I heard the jurisdictional issue by video link on 21 and 28 November 2019. I heard oral evidence from five persons:

• Robert McCrae (Applicant);

• Kim Meng Hon (Mr Hon Snr) (Owner);

• Yueh Chih Chiang (Cindy or Mrs Hon) (Owner);

• Paul Scott (Guest); and

• Chih-Chieh Huang (Zac or Mr Huang) (Guest).

[8] I also received written submissions and documents from both parties, including a limited Statement of Agreed Facts.

[9] Mr McCrae was self-represented. Perth Backpackers was represented by Mr and Mrs Hon’s son, Mr Hon Jnr (Alan). Mr and Mrs Hon, as well as Mr Huang, gave evidence in the Mandarin language, via an interpreter.

[10] At the conclusion of proceedings, I reserved my decision.

This Statement

[11] At this stage of my decision-making, I have formed a provisional but not yet concluded view on the jurisdictional issue.

[12] I consider it appropriate via this Statement to inform the parties of my provisional view and provide each the opportunity to participate in Member-assisted conciliation.

[13] Such a course will enable the parties to reflect on the evidence and my provisional view, and given that no conciliation has yet taken place, retain some degree of control over the outcome of these proceedings.

[14] The provisional view I have formed is in the context of an unfair dismissal application under Part 3-2…

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: [2019] FWC 8212
Decision Date: 4 DECEMBER 2019

CaseChat Overview and Summary

The applicant, Robert McCrae, brought an application against Perth 178 Backpackers and Convenience Store, seeking a remedy for unfair dismissal. The primary issue before the Fair Work Commission was whether McCrae, who was a guest of the hostel, could be classified as an employee for the purposes of unfair dismissal jurisdiction. McCrae argued that he was an employee because he was performing cleaning work for the hostel, while the employer contended that he was merely a guest who volunteered to assist with cleaning. The matter was heard by the Commission, which had to determine whether McCrae's activities fell within the scope of the Fair Work Act's definition of an employee.

The Commission examined the factual circumstances surrounding McCrae's stay at the hostel and the nature of his work. The employer argued that McCrae's work was not regular or systematic, and he had no contractual obligations to perform such work. The Commission noted that the test for determining whether a person is an employee under the Fair Work Act involves assessing the overall relationship between the parties, including the degree of control and dependency. The Commission considered the evidence and submissions from both parties, including the content of any written agreements and the nature of the work performed.

After careful consideration of the evidence and submissions, the Commission determined that McCrae was not an employee for the purposes of unfair dismissal jurisdiction. The Commission found that McCrae's activities were not regular or systematic, and he had no contractual obligations to perform cleaning work. The Commission also noted that the degree of control and dependency was insufficient to establish an employment relationship. The Commission expressed a provisional view that the matter should be referred to Member-assisted conciliation to provide an opportunity for the parties to resolve the dispute without the need for further proceedings.

The Commission ordered that the matter be referred to Member-assisted conciliation. The Commission noted that this decision was a provisional view and that the final outcome of the conciliation process would determine the final orders of the Commission. The Commission also noted that if the matter was not resolved through conciliation, the applicant would have the right to lodge an appeal to the Federal Court. The Commission's decision highlighted the importance of establishing an employment relationship for the purposes of unfair dismissal jurisdiction and the need for clear evidence to support such a claim.

Orders