s.394 - Unfair dismissal

Unfair dismissal application - jurisdictional objection - Applicant not an employee - jurisdictional objection upheld - application dismissed

• [1] Mr Doran has lodged an unfair dismissal application under s 394 of the Fair Work Act 2009 (Cth). The Form F2 application names Beijer Ref Holdings Australia Pty Ltd (Beijer) as the respondent.

• [2] Beijer has lodged a Form F3 in which it is has indicated, amongst other things, that the applicant was not dismissed and that the applicant was not employed by Beijer.

• [3] Under s 394 of the Act, "a person who has been dismissed" may apply for an unfair dismissal remedy. Section 386 of the Act defines "dismissed" and sub-section (1) is in the following terms:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

• [4] Relevantly, both sub-paragraphs 386(1)(a) and (b) pre-suppose an employment relationship. This is evident from the reference to "his or her employer" in both sub-paragraphs.

• [5] Under s 396 of the Act, the Commission must decide certain matters relating to an application before considering the merits of the application. One of those matters is "whether the person was protected from unfair dismissal".

• [6] Section 382 identifies when a "person is protected from unfair dismissal" and is relevantly in the following terms:

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

(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.

• [7] Sub-section 382(a) also pre-supposes an employment relationship. This is also evident from the reference to "his or her employer" in the sub-paragraph.

• [8] Consequently, if an unfair dismissal application is filed by a person against an entity which is not the employer, the application is not validly made. This is because the person cannot have been "dismissed" by the alleged employer, as that entity is not the person's employer. The person filing the application is therefore not "a person who has been dismissed" for the purposes of s 394(1). Furthermore, the person filing the application cannot be a person "protected from unfair dismissal" within the meaning of s 382 as the alleged employer is not the person's employer.

• [9] In the present matter, Beijer has provided the Commission a document entitled "Employment Agreement (On-Hire Casual)" between Mr Doran and an entity named Ready Staff Pty Ltd (Ready Staff). The Employment Agreement constitutes a contract of employment and clearly identifies Ready Staff as the employer. It created an employment relationship between Mr Doran and Ready Staff. The Employment Agreement was the relevant instrument under which Mr Doran performed work at Beijer. Beijer is not and never was party to the Employment Agreement. Therefore, Beijer is not and never has been the employer of Mr Doran.

• [10] Beijer's Form F3 discloses that Ready Staff was a labour hire provider to Beijer pursuant to the contractual agreement between those entities. Mr Doran performed work for Beijer on allocation from Ready Staff. This is not sufficient to establish an employment relationship between Mr Doran and Beijer.

• [11] Therefore, Mr Doran's unfair dismissal application must fail. Because Mr Doran was not an employee of Beijer, he was not "dismissed" within the meaning of s 386. Therefore, his application under s 394(1) is not validly made. Furthermore, because Mr Doran is not an employee of Beijer, he is not a "person protected from unfair dismissal" as required by s 382.

• [12] Therefore, I order that Mr Doran's application to the Commission under s 394 of the Act be dismissed.

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