DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Rudina Pekaj
v
AAMG Cleaning Group Pty Ltd
(U2018/1373)

COMMISSIONER HAMPTON

ADELAIDE, 14 MAY 2018

Application for an unfair dismissal remedy – jurisdictional objection – whether applicant eligible to apply – whether an employee – jurisdictional issue heard and determined as preliminary point – principles discussed – nature of evidence and materials considered – apparent subcontract system put in place by respondent but not applied in practice in this case – some competing indicia but clear that applicant not conducting a business for herself but rather employed in the business of the respondent – employment found – jurisdiction exists – further proceedings to be scheduled.

1. Background and case outline

[1] Ms Rudina Pekaj has made an application under s.394 of the Fair Work Act 2009 (the FW Act) seeking a remedy for an alleged unfair dismissal. AAMG Cleaning Group Pty Ltd (AAMG) had engaged Ms Pekaj as a Commercial Cleaner between 7 April 2015 and 30 January 2018.

[2] AAMG contends that Ms Pekaj is not protected from unfair dismissal, and not eligible to make this application, on the basis that she was not an employee within the meaning of the FW Act; but rather, was a subcontractor who invoiced AAMG for work undertaken and carried out by her own business. In order to properly bring an application of this present kind, an applicant must satisfy the Commission that they have been an employee. 1 Ms Pekaj contends that she was an employee and I will for convenience describe the dispute about this aspect as the jurisdictional issue.

[3] Having consulted with the parties I determined that the jurisdictional issue should be considered and dealt with as a preliminary point. Further, I considered that the matter should be subject to a determinative conference given all of the circumstances evident here. 2

[4] Some of those circumstances have also led to some difficulties in preparing for the determination of this matter. This includes the fact that the parties are not represented by representatives with experience in the Commission’s jurisdiction and the parties initially both failed to fully engage with the process. The applicant had tended to focus more upon the bona fides concerning the date of a statutory declaration and AAMG upon the view taken by the Australian Taxation Office (ATO) and related matters. Whilst both are potentially of some relevance, it is the substance of the relationship based upon evidence that matters for present purposes.

[5] During the course of the Determinative Conference the Commission was able to have the parties focus upon the relevant considerations and each gave evidence in support of their respective positions.

2. The positions of the parties

[6] Ms Pekaj was supported by her partner, Mr Benfield, and gave evidence with the assistance of an Albanian Interpreter.

[7] Ms Pekaj submits that she was an employee of AAMG at all times and contends as follows:

•

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.

Continue reading Rudina Pekaj v AAMG Cleaning Group Pty Ltd

Details

AGLC: Rudina Pekaj v AAMG Cleaning Group Pty Ltd [2018] FWC 2348
Case: [2018] FWC 2348
Decision Date: 14 MAY 2018

CaseChat Overview and Summary

Rudina Pekaj brought an application for unfair dismissal against AAMG Cleaning Group Pty Ltd before the Fair Work Commission. The central issue was whether Ms. Pekaj was eligible to apply for the remedy, specifically if she was an employee of the respondent company at the relevant time. The court was required to determine the legal nature of Ms. Pekaj's relationship with AAMG Cleaning Group, particularly given the allegations that she was a subcontractor rather than an employee. The court considered this as a preliminary point to ascertain its jurisdiction. The discussion included the principles that govern the distinction between an employee and an independent contractor, focusing on the nature of the evidence and materials presented.

The Fair Work Commission examined various indicia of employment, such as the control exerted by the respondent over Ms. Pekaj, the degree of financial risk she assumed, and the extent to which her work was integrated into the respondent's business. The court found that although the respondent had a subcontract system in place, it was not applied in practice in Ms. Pekaj's case. Instead, there were clear indications that she was not conducting a business for herself but was rather employed in the business of the respondent. This conclusion was drawn from the control exerted by AAMG over Ms. Pekaj's work, the provision of tools and materials by the company, and the absence of significant entrepreneurial risk. Consequently, the court held that Ms. Pekaj was an employee of AAMG Cleaning Group Pty Ltd, thereby confirming its jurisdiction over the application.

Following the determination that Ms. Pekaj was indeed an employee, the Fair Work Commission proceeded to schedule further proceedings to address the merits of the unfair dismissal application. The court recognised the importance of ensuring that the appropriate legal framework was applied in employment disputes, particularly in cases involving complex employment arrangements. The decision underscores the necessity for courts to carefully consider the factual matrix and the true nature of the employment relationship when deciding jurisdictional issues.

Orders