Susan Miles v University of Melbourne

[2024] FWC 3027

[2024] FWC 3027

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Susan Miles
v

University of Melbourne

(U2024/11959)

DEPUTY PRESIDENT COLMAN MELBOURNE, 31 OCTOBER 2024

Unfair dismissal application – application dismissed

1. Earlier today I dismissed an unfair dismissal application made by Susan Miles under s 394 of the Fair Work Act 2009 (Act). First, Ms Miles was not employed by the respondent, the University of Melbourne. Ms Miles had signed an independent contractor agreement with Talent International (Vic) Pty Ltd (Talent) pursuant to which she agreed to provide services for which Talent paid her a daily fee. Talent assigned her to work at the university, which is Talent’s client. Ms Miles submitted that the university provided her with tools of work, training and access to systems, and that it controlled her daily work, and that these and many other factors meant that she satisfied the multi-factorial test and was an employee of the university. The submission is misconceived. A person cannot be the employee of another unless there is a contract of employment between them. Ms Miles had a factual relationship with the university, but not a legal one. There was no contract of any kind between them. Instead, Ms Miles had a contract with Talent. It was clearly one of principal and contractor. It is clear, and I find, that Ms Miles was not employed by the University of Melbourne. The university did not dismiss her. Further and in any event, her deployment at the university was for less than 6 months. She did not meet the minimum employment period. For these reasons the application was dismissed.

DEPUTY PRESIDENT

Hearing details:

2024
Melbourne (by telephone)
31 October

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