Shanaye Dicker-Lee v The Trustee For VJSS Family Trust — Benchmark

Ratio

The Commission lacks jurisdiction to hear a general protections claim under s365 where the respondent did not employ the applicant. Ms Dicker-Lee failed to establish that The Trustee for VJSS Family Trust employed her; evidence indicated she was likely employed at a different Cellarbrations franchisee location. As the respondent could not have dismissed her, the application was dismissed on jurisdictional grounds."

Outcome

Against applicant dismissed_jurisdiction

Authority signal

Not yet cited by other cases Signal-weighted score: 0.0

Derived from how later decisions have treated this case. Dark green = leading authority, green = positively treated, grey = neutral or sparse data, amber = caution, red = treated negatively.

Key facts · 9

Ms Dicker-Lee applied under s365 FWA alleging dismissal by The Trustee for VJSS Family Trust (Cellarbrations at East Fremantle, 83 Canning Highway)
Ms Dicker-Lee's Form F8 indicated employment as bottle shop attendant at 1/152 High Street, East Fremantle (Cellarbrations at Fremantle), a different location
On 28 April 2025, Ms Dicker-Lee advised she may have named the wrong respondent
Ms Dicker-Lee was advised to file an amendment application but did not do so
Commission made several follow-up calls and emails to Ms Dicker-Lee which went unanswered
Case management conference listed 11 June 2025; Ms Dicker-Lee did not attend or respond to calls/emails
Commission sent email on 11 June 2025 requiring Ms Dicker-Lee to confirm respondent identity by 12:00pm AWST 12 June 2025
Ms Dicker-Lee did not contact Chambers as of date of decision
Commissioner found Ms Dicker-Lee likely mistakenly named a different Cellarbrations franchisee

Legislation referenced

Fair Work Act 2009 s365
Fair Work Act 2009 Pt 3-1

Concept tags · 5

[P]General protections (FW Act Pt 3-1) [P]Standing to bring application [P]Jurisdictional facts [S]Unfair dismissal (federal) [S]Joinder / amendment of parties

Principles · 2

articulates para 9

The Commission lacks jurisdiction to determine an application under s365 where the respondent did not employ the applicant, as only an employer can effect a dismissal

cites para ?

Before an application under s365 can proceed, the Commission must determine whether the respondent actually dismissed the applicant

Cases cited in this decision · 1

Cited

[2022] FCAFC 152 (not in corpus)

"…The Commission does not have jurisdiction to deal with his application under s 365 of the Act. Accordingly, I order that Ms Dicker-Lee’s application be dismissed. COMMISSIONER Printed by authority of the Commonwealth...…"

Related cases · 10

Decisions sharing two or more primary concepts with this case.

Citation	Court	Date	Outcome	Shared	Cited
[2025] FWC 847 Mrs Kim Ong v Victorian Energy Safety Commission, Mr Tasos Koklas	FWC	2025-01-01	Against applicant	3	0
[2025] FWC 2093 Myeongju Kim v Trustee for H J Heatherton Family Trust	FWC	2025-01-01	Against applicant	3	0
[2025] FWC 3494 Ms My Loan Lam v Weldon Children's Services	FWC	2025-01-01	Against applicant	3	0
[1985] HCA 19 Gosper v Sawyer	High Court	1985-01-01	Against applicant	2	0
[2016] FCAFC 147 Regional Express Holdings Ltd v Australian Federation of Air Pilots	Federal Court — Full Court	2016-10-26	Against applicant	2	2
[2013] FWCFB 6321 Ms Delwyn Hewitt v Topero Nominees Pty Ltd T/A Michaels Camera Video Digital	FWC — Full Bench	2013-09-03	For applicant	2	11
[2017] FCA 1557 Hastwell v Kott Gunning	Federal Court	2017-01-01	Against applicant	2	2
[2022] WASC 401 PATOLE -v- CHILD & ADOLESCENT HEALTH SERVICE	WA Supreme Court	2022-12-01	Against applicant	2	1
[2018] WAIRC 881 The Registrar, Western Australian Industrial Relations Commission v Metal...	WAIRC — Full Bench	2018-12-07	For applicant	2	0
[2011] WAIRC 397 2011 Wairc 00397 Coram : the Honourable J H Smith, Acting President Acting...	WAIRC — Full Bench	2011-06-10	Against applicant	2	0

Archived text (633 words)

1 Fair Work Act 2009 s.365 - General protections Shanaye Dicker-Lee v The Trustee For VJSS Family Trust (C2025/3045) COMMISSIONER LIM PERTH, 18 JUNE 2025 Applications to deal with contraventions involving dismissal – jurisdictional objection – not dismissed – objection sustained – applicant not an employee – application dismissed. [1] Ms Shanaye Dicker-Lee has applied to the Fair Work Commission under s 365 of the Fair Work Act 2009 alleging that The Trustee for VJSS Family Trust contravened Part 3-1 of the Act by dismissing her from her employment. VJSS objects to Ms Dicker-Lee’s application on the basis it did not employ her and therefore cannot have dismissed her. [2] Consistent with the Full Court of the Federal Court’s ruling in Coles Supply Chain Pty Ltd v Milford,1 before Ms Dicker-Lee’s application can proceed, I must determine whether VJSS Family Trust dismissed her. [3] VJSS Family Trust say that they did not employ Ms Dicker-Lee and that it appears she may have identified them incorrectly. The trading name for The Trustee for VJSS Family Trust is Cellarbrations at East Fremantle. Their address is 83 Canning Highway, East Fremantle. [4] Ms Dicker-Lee’s Form F8 indicates that she was employed as a bottle shop attendant, with the address of the employing entity being “1/152 High Street, East Fremantle Perth”. The store at 1/152 High Street, East Fremantle appears to be Cellarbrations at Fremantle. [5] On Monday 28 April 2025, the Commission spoke with Ms Dicker-Lee. Ms Dicker-Lee indicated that she may have named the wrong respondent. Ms Dicker-Lee was advised that if she wished to amend her application, she would need to make an application to do so. This was confirmed in a follow up email to Ms Dicker-Lee. Ms Dicker-Lee did not file an application to amend her s 365 application. [6] My Chambers made several phone calls to Ms Dicker-Lee to follow up the issue. Ms Dicker-Lee did not answer or return those calls. [7] I listed a case management conference on Wednesday 11 June 2025. Ms Dicker-Lee did not attend. Ms Dicker-Lee did not respond to calls or emails asking her to join the case [2025] FWC 1717 DECISION [2025] FWC 1717 2 management conference. That same day, my Chambers wrote to Ms Dicker-Lee. The email set out the information in [3] – [4] of this Decision, and stated: “Response from Dicker Lee required Ms Dicker-Lee, you must respond to this email by 12:00pm AWST (WA Time) tomorrow, Thursday 12 June 2025, to confirm who you say is the Respondent in this matter. Please check the ABN on the payslip you received, or any text messages or emails that may indicate who employed you. If the Respondent is not The Trustee for VJSS Family Trust (Cellarbrations at East Fremantle), you must let us know if you wish to amend your application and who is the actual Respondent. If we do not hear from you, the Commissioner will proceed to deal with objection that you were not an employee of The Trustee for VJSS Family Trust (Cellarbrations at East Fremantle). This may mean that your application will be dismissed.” [8] As of the date of this decision, Ms Dicker-Lee has not contacted my Chambers to clarify who is the proper respondent for her application. [9] Based on the information in [3] – [4] of this Decision, it appears that Ms Dicker-Lee has mistakenly named a different Cellarbrations franchisee. Therefore, I am not satisfied that VJSS Family Trust employed Ms Dicker-Lee. As VJSS did not employ Ms Dicker-Lee, they could not dismiss her. [10] The Commission does not have jurisdiction to deal with his application under s 365 of the Act. Accordingly, I order that Ms Dicker-Lee’s application be dismissed. COMMISSIONER Printed by authority of the Commonwealth Government Printer <PR788347> 1 [2022] FCAFC 152.