TERMINATION OF EMPLOYMENT – Small Business Fair Dismissal Code – contractor or employee – ss.388, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant employed as a Personal Care Attendant at a small residential unit for elderly people – respondent objected to application on the grounds that applicant was a contractor and not an employee – Commission considered On Call Interpreters and Translators and generally accepted indicia – satisfied applicant was an employee and not a contractor – Commission considered amount of employees at date of termination – satisfied that Small Business Fair Dismissal Code (Code) applied – not disputed that applicant was not dismissed for serious misconduct – Commission found that employer did not comply with all aspects of ‘other dismissal’ provisions of the Code – dismissal not consistent with the Code – respondent submitted applicant was dismissed with immediate effect due to applicant’s conduct towards colleagues and residents – notified applicant of dismissal by text message – applicant denied all allegations but one – alleged respondent’s concerns not put to applicant – Commission satisfied no valid reason for dismissal – reinstatement not appropriate due to the nature of the work with vulnerable elderly people – ordered compensation $6,360.03 plus superannuation, taxed appropriately. Kerry v The Trustee for Claerwen Family trust t/a Caulfield House
