s.365 - General protections

Applications to deal with contraventions involving dismissal - jurisdictional objection - not dismissed - objection sustained - applicant not an employee - application dismissed.

• [1] Ms Shanaye Dicker-Lee has applied to the Fair Work Commission under s 365 of the Fair Work Act 2009 alleging that The Trustee for VJSS Family Trust contravened Part 3-1 of the Act by dismissing her from her employment. VJSS objects to Ms Dicker-Lee's application on the basis it did not employ her and therefore cannot have dismissed her.

• [2] Consistent with the Full Court of the Federal Court's ruling in Coles Supply Chain Pty Ltd v Milford,[1] before Ms Dicker-Lee's application can proceed, I must determine whether VJSS Family Trust dismissed her.

• [3] VJSS Family Trust say that they did not employ Ms Dicker-Lee and that it appears she may have identified them incorrectly. The trading name for The Trustee for VJSS Family Trust is Cellarbrations at East Fremantle. Their address is 83 Canning Highway, East Fremantle.

• [4] Ms Dicker-Lee's Form F8 indicates that she was employed as a bottle shop attendant, with the address of the employing entity being "1/152 High Street, East Fremantle Perth". The store at 1/152 High Street, East Fremantle appears to be Cellarbrations at Fremantle.

• [5] On Monday 28 April 2025, the Commission spoke with Ms Dicker-Lee. Ms Dicker-Lee indicated that she may have named the wrong respondent. Ms Dicker-Lee was advised that if she wished to amend her application, she would need to make an application to do so. This was confirmed in a follow up email to Ms Dicker-Lee. Ms Dicker-Lee did not file an application to amend her s 365 application.

• [6] My Chambers made several phone calls to Ms Dicker-Lee to follow up the issue. Ms Dicker-Lee did not answer or return those calls.

• [7] I listed a case management conference on Wednesday 11 June 2025. Ms Dicker-Lee did not attend. Ms Dicker-Lee did not respond to calls or emails asking her to join the case management conference. That same day, my Chambers wrote to Ms Dicker-Lee. The email set out the information in [3] - [4] of this Decision, and stated:

Ms Dicker-Lee, you must respond to this email by 12:00pm AWST (WA Time) tomorrow, Thursday 12 June 2025, to confirm who you say is the Respondent in this matter. Please check the ABN on the payslip you received, or any text messages or emails that may indicate who employed you. If the Respondent is not The Trustee for VJSS Family Trust (Cellarbrations at East Fremantle), you must let us know if you wish to amend your application and who is the actual Respondent.

If we do not hear from you, the Commissioner will proceed to deal with objection that you were not an employee of The Trustee for VJSS Family Trust (Cellarbrations at East Fremantle). This may mean that your application will be dismissed."

• [8] As of the date of this decision, Ms Dicker-Lee has not contacted my Chambers to clarify who is the proper respondent for her application.

• [9] Based on the information in [3] - [4] of this Decision, it appears that Ms Dicker-Lee has mistakenly named a different Cellarbrations franchisee. Therefore, I am not satisfied that VJSS Family Trust employed Ms Dicker-Lee. As VJSS did not employ Ms Dicker-Lee, they could not dismiss her.

• [10] The Commission does not have jurisdiction to deal with his application under s 365 of the Act. Accordingly, I order that Ms Dicker-Lee's application be dismissed.

[1] [2022] FCAFC 152.

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