The Fair Work Act 2009 (Cth) (FW Act) provides a protection from unfair dismissal and permits an application to be made for remedy. In our previous blog Objection! – Access to the Unfair Dismissal Jurisdiction we outlined some of the jurisdictional objections that can be raised by an employer when an unfair dismissal is lodged by an employee.
Access to the unfair dismissal jurisdiction however is limited to eligible employees and an objection may also be lodged where it is disputed that the applicant was not an employee. In some circumstances, it may not be entirely clear whether an applicant was an employee rather than an independent contractor or volunteer.
In the recent decision of Adam Grinholz v Football Federation Victoria Inc  7976 (Grinholz case) the Fair Work Commission (FWC) considered a jurisdictional objection lodged by Football Federation Victoria Inc (FFV).
Mr Grinholz and FFV entered into agreements in 2015 and 2016 where he was to coach the Girls Under 13 football team. In September 2016, the Agreement was terminated after Mr Grinholz forfeited a game without the approval of FFV.
Mr Grinholz lodged an unfair dismissal application and claimed that he was an employee of FFV. FFV argued that Mr Grinholz was a volunteer and accordingly, as he was not an employee, could not lodge an application for unfair dismissal.
The FWC noted that the contracts were “Voluntary Service Agreements” where Mr Grinholz was required to attend training sessions and matches. Under the agreement he was to be paid an honorarium for expenses related to his travel and accommodation.
The FWC had regard to the accepted criteria to determine if Mr Grinholz was an employee or volunteer. These factors included whether an employer:
Even after applying the above factors to the arrangement between Mr Grinholz and the FFV it was still not clear whether Mr Grinholz was an employee.
However, the FWC stated that the essential character of the relationship should be considered. The FWC was satisfied that it was the intention of the parties, as per the Agreements, to establish a volunteer relationship.
Accordingly, the FWC upheld the jurisdictional objection by finding Mr Grinholz was a volunteer and not an “eligible employee” and dismissed Mr Grinholz’s unfair dismissal application.
The Grinholz decision will be a relief for sporting organisations who rely significantly on volunteers.
The Volunteer Agreement was considered to be for legitimate purposes rather than creating a sham arrangement and the FWC noted that, for organisations such as the FFV, the high level of control over the performance and standard of work was not inconsistent with a volunteer relationship.
As a reminder to sporting organisations who use volunteers:
Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.
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