Director argues agent was 'business partner,' not employee
The Fair Work Commission (FWC) recently dealt with a worker’s unfair dismissal claim, alleging that she was fired because the husband of the company’s director did not want her at the workplace.
The worker started working for the employer around May 2016. In her capacity, she assumed a role resembling that of a tax agent, primarily tasked with the submission of business activity statements (BAS), tax returns, and various related responsibilities.
According to records, the worker’s argument is that she was an employee and that, essentially, there was no valid reason for the dismissal because the purported reason for the dismissal was “the husband of the director didn't want her in the office anymore and was not comfortable with her being there.”
Conversely, the employer argued that the worker was not an employee but rather “a partner in the business.”
The employer further said that this partnership was dissolved by mutual agreement around July 2022. Additionally, it said that the worker has since established her independent business and successfully secured a number of former clients from the employer's business.
Worker’s issue with late application
After considering the worker’s allegation against the employer, the Commission found that the worker filed a late application. “Based on the termination date taking effect on 27 July 2022, the application for a remedy should have been lodged by no later than 17 August 2022,” it said.
“The application was therefore lodged one year and one day or 366 days outside of the time prescribed. The Act allows the Commission to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances,” it added.
In considering if the worker had an “exceptional reason,” she said that she was dealing with the grief of her father’s death, citing that it affected her affairs.
“I had to move on from scratch with no client’s backed-up database. It took almost a year for me to recover, that's why I did not lodge the complaint sooner. Until now, I still don't accept the reason [for] the dismissal,” the worker said.
In its decision, the FWC said the worker’s circumstances do not indicate that she “was incapacitated in any way from her grief such that she was unable to lodge an application.”
“In fact, the evidence is to the contrary and during the year, she has been able to continue engaging in the work that she undertakes as a tax agent.”
“Overall, having regard to all of the evidence, [there is no] acceptable reason for this very long delay in lodging an application,” the Commission said.
Thus, the FWC rejected the worker’s application for an unfair dismissal remedy against the employer.
