Fair Work Act 2009

s.365 - General protections

Section 365 - jurisdictional objection - application dismissed

• [1] The following is an edited version of a decision given on transcript today. Miriam Wallace has made an application under s 365 of the Fair Work Act 2009 (Act). The respondent, KDR Victoria Pty Ltd (KDR), objects to the application on the ground that it did not employ Ms Wallace, and therefore did not dismiss her. It is not in dispute that Ms Wallace was employed by Charterhouse Recruitment Pty Ltd (CR), and that CR deployed her to perform work for KDR pursuant to a contract between the two companies. On 17 April 2024, KDR told CR to cease using Ms Wallace to perform the work. The next day, CR dismissed her.

• [2] Section 365 states that if a person has been dismissed and alleges that the dismissal contravened Part 3-1, the person may apply to the Commission to deal with the dispute. The section contemplates a dismissal by the person's employer (see s 386), and an allegation that the employer thereby contravened Part 3-1. Ms Wallace does not alleged that CR contravened the Act. Her application is against KDR, which did not employ her. It is not a claim that can be made under s 365 of the Act. The Commission has no power to deal with it. KDR's objection is upheld. The application is dismissed.

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