1
Fair Work Act
2009
s.365—General protections
John Grass
v
NSW Chinese Tennis Association Inc
(C2021/314)
COMMISSIONER WILLIAMS PERTH, 8 APRIL 2021
Application to deal with contraventions involving dismissal.
[1] The Applicant, Mr John Grass, filed a Form F8 General Protections Application
involving dismissal on 20 January 2021. The application is made under section 365 of the
Fair Work Act 2009 (Cth) (the Act).
[2] The Respondent is the New South Wales Chinese Tennis Association Incorporated
(the Respondent).
[3] The Respondent’s Form F8A Response to General Protections Application raised a
jurisdictional objection that there was not an employee and employer relationship between the
Applicant and the Respondent.
[4] Section 365 of the Act, which is set out below, only concerns an employee dismissed
by their employer.
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to
represent the industrial interests of the person, alleges that the
person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for
the FWC to deal with the dispute.”
[5] Section 386 of the Act, as set out below, defines “dismissed” in terms of an employee
and employer relationship.
“386 Meaning of dismissed
(1) A person has been dismissed if:
[2021] FWC 1888 [Note: An appeal pursuant to s.604 (C2021/2401) was
lodged against this decision - refer to Full Bench decision dated
15 June 2021 [[2021] FWCFB 3443] for the result of the appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb3443.htm
[2021] FWC 1888
2
(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.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified
period of time, for a specified task, or for the duration of a specified season,
and the employment has terminated at the end of the period, on completion
of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for
any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training
arrangement; or
c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her
remuneration or duties; and
(ii) he or she remains employed with the employer that effected the
demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind
referred to in paragraph (2)(a) if a substantial purpose of the employment of the
person under a contract of that kind is, or was at the time of the person’s
employment, to avoid the employer’s obligations under this Part.
[6] A conference was conducted to attempt to resolve the application, but this was
unsuccessful.
[7] Subsequently, the application has been referred to myself for determination.
[8] Communication between the Applicant and the Fair Work Commission (the
Commission), for example an email on 12 February 2021 to the chambers of Deputy
President Millhouse, indicates that the Applicant understood he was an independent
contractor.
[9] Consequently, on 18 March 2020, the Commission as currently constituted wrote to
the Applicant explaining that section 365 of the Act only applies to employees who have been
dismissed by their employer. Given that the Applicant apparently understood he was an
independent contractor he was asked to review whether he wished to proceed with his
application.
[10] Whilst the Applicant responded to this letter, ultimately, he did not discontinue his
application. Consequently, on 31 March 2021 the Commission as currently constituted again
wrote to him advising that it was the Commission's preliminary view that the application was
beyond jurisdiction because he was not an employee who was dismissed by their employer.
The Applicant was advised that, subject to consideration of any further submission he wished
[2021] FWC 1888
3
to make by 7 April 2021, it was the Commission's intention to dismiss his application without
further notice for want of jurisdiction.
[11] As at the date of this decision, Mr Grass has not provided any submission addressing
the fact that it appears he was not an employee dismissed by his employer.
[12] Consequently, on the totality of the material before the Commission, I find that the
Applicant was not an employee dismissed by his employer and so Mr Grass is not able to
make an application under section 365 of the Act.
[13] The application is beyond the Commission's jurisdiction and consequently will be
dismissed. An order [PR728430] to that effect will now be issued.
Printed by authority of the Commonwealth Government Printer
PR728429
THE FAIR WORK OMMISSION 1 COMMIS THE S
