Details 

 Created: 30 January 2020

The Commission has referred a claim for unfair dismissal to a substantive hearing to decide whether there was a dismissal and, if there was, whether that dismissal was unfair.

The applicant alleges that, while she accepts that she resigned as part of the settlement of a claim under the Worker’s Compensation and Injury Management Act 1981, she was ‘forced into resigning’ in such a way as to making the ending of her employment a ‘constructive dismissal’. The respondent argues that the resignation was ‘voluntary’ as part of the settlement of her worker’s compensation claim.

Commissioner Matthews noted the presence of some unusual circumstances about which the applicant had given evidence on.  Commissioner Matthews discussed the possibility that the respondent, by its conduct, orchestrated a situation where the applicant had no real choice but to resign.

The application was also filed out of time. The respondent did not wish to be heard at the preliminary hearing on whether the Commission should act under s 29(3) Industrial Relations Act 1979, which allows the Commission to accept a referral by an employee that is out of time if the Commission considers that it would be unfair not to do so.

Commissioner Matthews will determine the issues of jurisdiction and the s 29(3) Industrial Relations Act question at the substantive hearing.

The decision can be read here.  

Details 

 Created: 30 January 2020

The Industrial Magistrate’s Court has dismissed a claim by a meat delivery driver for annual leave and superannuation entitlements under the Fair Work Act 2009 (Cth) (FW Act) but upheld his claim for long service leave entitlements under the Long Service Leave Act 1958 (WA) (LSL Act).

The respondent denied that the applicant was an employee under the FW Act and the LSL Act, but rather said that he was an independent contractor. 

Industrial Magistrate Flynn determined that the totality of the relationship between the applicant and respondent included the legal relationship between the parties. Flynn IM found that the services of the applicant were supplied to the respondent by a partnership, of which the claimant and his wife were partners. Flynn IM found that the role of the partnership and the fact that the applicant supplied his own purpose-built vehicle for his work indicated that the applicant was not serving the respondent’s business, but his own. He was not an ‘employee’ as defined under the FW Act.

Annual leave and superannuation entitlements

Flynn IM found that the applicant’s claim for annual leave and superannuation entitlements be dismissed.

Long service leave entitlements

In relation to the applicant’s claim for long service leave entitlements under the LSL Act, Flynn IM considered s 4(1)(d) of the LSL Act and noted that this definition of ‘employee’ contains a specific reference to vehicle ownership.

Flynn IM found that the meaning of ‘in all other respects an employee’ in s 4(1)(d) is determined through the application of the same ‘totality of the relationship’ test applied in the applicant’s claim under the FW Act, without regard to the fact that the applicant owned the vehicle through the partnership.

Flynn IM re-applied the ‘totality of the relationship’ test (excluding the fact that he partly owned the vehicle through the partnership) and found that the applicant was an ‘employee’ of the respondent as defined by s 4(1)(d).

Flynn IM upheld the applicant’s claim for long service leave entitlements.

The decision can be read here.

Details 

Created: 30 January 2020

The Commission has dismissed a claim of unfair dismissal after finding that the applicant was not dismissed but was given a real choice to resign and did so.

The applicant alleged that the conduct of the respondent left her no choice but to resign, giving rise to constructive dismissal. The respondent argued that the applicant was not dismissed and that she voluntarily resigned as part of the settlement of a claim under the Workers’ Compensation and Injury Management Act 1981.

The applicant gave evidence that she accepted an offer of $70,000 to compromise her workers’ compensation claim, with a condition of settlement being she resign from her employment. She gave evidence that she refused to sign the draft letter of resignation from the respondent, and instead signed a version she amended which she felt better served her interests.

Commissioner Matthews found that the conduct of the respondent, as a matter of common-sense causation, did not lead to the applicant’s resignation. Instead, the applicant resigned to receive the offer of $70,000 in circumstances where her financial situation had become very bad. The applicant knew she had a choice as she refused to sign the draft letter until it was amended in what she considered to be her own best interests.

Commissioner Matthews found that there was no dismissal in the circumstances and consequentially found that the Commission does not have jurisdiction to hear and determine the application.

The application was dismissed by order.

The decision can be read here.