Employer argues worker wasn't protected by Fair Work Act
The Fair Work Commission (FWC) recently dealt with a case involving a dismissal dispute brought by a worker against her former organisation, a community association. The worker alleged that she was unfairly dismissed from her volunteering role because she exercised a workplace right and sought the FWC's intervention to deal with the dispute pursuant to s.365 of the Fair Work Act 2009 (FW Act).
In this case, the worker made an application to the FWC on 29 April 2024, claiming that she experienced unfair, unjust, and unreasonable treatment when she was dismissed from her volunteering role.
The worker alleged that she was dismissed because she exercised a workplace right. The organisation, however, objected to the application, stating that the worker was not an employee and, therefore, was not dismissed within the meaning of s.386 of the FW Act.
The worker's application
The worker's application to the FWC stated that she experienced "unfair, unjust and unreasonable treatment in being dismissed from her volunteering role" with the organisation because she exercised a workplace right. The worker sought the FWC's intervention to deal with the dismissal dispute pursuant to s.365 of the FW Act.
In its Form F8A Response, the organisation objected to the worker's application, arguing that the worker was not an employee and, therefore, was not dismissed within the meaning of s.386 of the FW Act. The organisation maintained that the worker's role was that of a volunteer and not an employee.
The matter was allocated to a Commissioner's chambers to determine the organisation's jurisdictional objection. The Commissioner sent correspondence to the parties, noting that both parties had characterised the worker's role as a volunteer and providing relevant sections of the FW Act and the General Protections Benchbook.
The correspondence also requested the worker to confirm whether she wished to proceed with the application, considering that only employees who are dismissed are eligible to make an application under s.365 of the FW Act.
"On 27 May 2024, I instructed my Associate to send correspondence to the parties which:
- Referred to both parties' characterisation of the Applicant's role as a volunteer;
- Provided a link to the General Protections Benchbook and ss.12 and 386 of the FW Act;
- Noted that only employees who are dismissed are eligible to make an application pursuant to s.365 of the FW Act; and
- Requested the Applicant to confirm whether she wished to proceed with the Application," the FWC said.
The worker replied, expressing disappointment that volunteers are not covered by "Australian unfair dismissal laws" but did not confirm whether she wished to proceed with or withdraw the application.
In a subsequent voicemail message, the worker acknowledged that she was a volunteer and that volunteers are not eligible to make a dismissal claim, but she did not want to withdraw the application.
The Commissioner's provisional view
The Commissioner provided further correspondence to the parties, stating that it was apparent from the application, response, and subsequent correspondence that the worker accepted she was a volunteer and not an employee. The Commissioner highlighted that being an employee and being dismissed from that employment are jurisdictional prerequisites to an application under s.365 of the FW Act.
"Having regard to the application and the subsequent correspondence between the Applicant and my chambers in which the Applicant repeatedly acknowledges that she was a volunteer and not an employee, it is my provisional view that the application in proceedings C2024/2806 has no reasonable prospects of success and should be dismissed on that basis (see s.587 of the FW Act)."
The Commissioner provided the worker with an opportunity to make submissions in response to the provisional view that the application should be dismissed or, alternatively, to discontinue the application by filing a Notice of Discontinuance (Form F50). The worker did not respond to this correspondence.
The meaning of "dismissed"
The Commissioner noted that the word "dismissed" is defined in s.12 of the FW Act and takes its meaning from s.386 of the FW Act. Section 386 provides that a person has been dismissed if their employment has been terminated on the employer's initiative or if the person resigned but was forced to do so because of the employer's conduct.
"Section 386 of the FW Act provides as follows:
386 Meaning of dismissed
(1) A person has been dismissed if:
(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."
The Commissioner also referred to s.587 of the FW Act, which allows the FWC to dismiss an application on its own initiative or on application if the application is not made in accordance with the FW Act, is frivolous or vexatious, or has no reasonable prospects of success.
The FWC's decision
The Commissioner confirmed the provisional view that the worker's application had no reasonable prospects of success and dismissed the application pursuant to s.587(1)(c) of the FW Act.
The decision was based on the worker's repeated acknowledgement that she was engaged by the organisation as a volunteer and not an employee.
"The Applicant has repeatedly acknowledged that she was engaged by the Respondent as a volunteer and was not an employee," the FWC said.
"It is well established that a person who is not in an employment relationship cannot be dismissed within the meaning of s.386 of the FW Act," it added.
The Commissioner emphasised that it is well-established that a person who is not in an employment relationship cannot be dismissed within the meaning of the FW Act. Consequently, the worker's application was dismissed, as it did not have any reasonable prospects of success.
This case highlights the importance of the employment relationship in the context of dismissal disputes under the FW Act. The FWC's decision clarifies that volunteers who are not engaged in an employment relationship are not eligible to make unfair dismissal applications, as they cannot be considered "dismissed" within the meaning of the legislation.
