Mark Farag v Dental Corporation Pty Ltd [2021] FWC 6290

In this decision of 8 November 2021, the Fair Work Commission considered an application for an unfair dismissal remedy (normally reinstatement or up to six months wages).

As is often the case in these matters, the Commission must deal with the jurisdictional objections first before considering the issues of the actual unfair dismissal. 

Dr Farag – who apparently did not have legal representation – had lodged an application pursuant to s 394 of the Fair Work Act in which he asserted that the termination by Dental Corporation was unfair.

Dental Corporation objected to the application because they said that Dr Farag was not an employee at the time, but even if he were an employee he was not dismissed within the meaning of the Act; that the Applicant was not covered by a modern award or enterprise agreement and his annual rate of earnings was above the high income threshold; and that the unfair dismissal application lodged on 31 August, some 25 days after the alleged termination was outside the 21 day statutory time period.  

Much of the decision relates to whether Dr Farag was indeed an employee or an independent contractor and the Commission at paragraphs [36] through to [77] navigates the various indicia and High Court decisions in relation to this matter and it can be useful for employers or indeed contractors who consider that they may not be contractors, to read and consider.  

The Deputy President concluded that Dr Farag was not an employee and if he were he had not been ‘constructively dismissed”  but did not move on to consider the third and fourth issues, meaning whether his annual rate of earnings was above the high income threshold, and whether an extension of time should be granted. Both of these jurisdictional questions were threshold issues, but the Commission considered that the employee issue was the one to be deal with and so the others fell away.

So there was no consideration of whether the Unfair Dismissal Application was lodged on 31 August outside the 21 day period. The Fair Work Commission will generally not grant extensions of time unless such an extension is necessary where for example there was an impossibility, some language or understanding issue. They will not generally be granted where the application was for no good reason filed late. 

The law seems to be fairly clear that a high income threshold ( which prevents well paid workers accessing this remedy) is only applicable where a person has a guaranteed income and commission is often not considered part of the assessment of that income level.

In conclusion, any dentist considering an unfair dismissal remedy needs to be aware : 

  1. the time periods for lodgement are 21 days and need to be adhered to strictly.  
  2. the determination as to whether someone is an employee or not is to be determined under significant complex deliberation by a relevant Tribunal, Commission or Court and they are, as is evidenced by this decision, very much context and fact-dependent.