Employer's failed jurisdictional defences to employee's unfair dismissal claim
06 June 2014
In the recent decision of Georgios Adalopoulos v CMC International Pty Ltd (U2013/8792) the applicant made an application with the Fair Work Commission for an unfair dismissal remedy. The respondent made the following jurisdictional objections to the application:
- the applicant was working as a contractor, not an employee;
- the applicant was never dismissed; and
- the applicant failed to meet the minimum period of employment requirement.
The Commission found that the applicant cannot be said to be conducting a business of his own, having regard to many indicias that supported a finding that the applicant was an employee and not an independent contractor, including:
- the applicant did not supply his own tools;
- it appears that the applicant did not have the ability to subcontract or delegate the work to anyone else;
- the fact that the applicant was paid for hours worked rather than jobs completed;
- the applicant was not generating any goodwill in the course of his work; and
- the applicant did not have the basic transactional systems that are common of a business providing installation and maintenance services in relation to spray booths for the automotive repair industry.
Further, although the employer did not expressly tell the employee that he was dismissed, the Court considered that the evidence made it clear that the employer considered the employee a thief and had commenced a process to find a replacement.
Finally, the Court found that the employee had worked for the employer for more than 1 year and has satisfied the minimum period of employment required.
Accordingly, the Court dismissed each of the three jurisdictional objections and listed the matter for hearing in relation to the merit of the employee's claim for remedy for unfair dismissal.
To find out how Armstrong Lawyers may assist you in relation to your employment matter or Unfair Dismissal, feel free to browse our Employment Matters page.