DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brett Powell
v
Group Messengers Pty Ltd
(U2021/995)

DEPUTY PRESIDENT MASSON

MELBOURNE, 1 OCTOBER 2021

Application for an unfair dismissal remedy – jurisdictional objection- whether the applicant was an employee of the Respondent – jurisdictional objection upheld - application dismissed.

Introduction

[1] On 8 February 2021, Mr Brett Powell (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) in which he asserts that he had been employed by Group Messengers Pty Ltd (the Respondent) and was unfairly dismissed on 18 January 2021.

[2] The Respondent objects to the application being heard on the basis that the Applicant was not an employee, that he was engaged as an independent contractor and consequently could not have been dismissed within the meaning of s 386 of the Act.

[3] The matter was initially set down for hearing of the Respondent’s jurisdictional objection on 1-3 June 2021 but was subsequently adjourned and re-listed for hearing on 22-23 July 2021. Both parties filed material in accordance with the Commission’s directions and were granted permission to be represented by legal counsel pursuant to s 596(2) of the Act. The Applicant was called to give evidence and the Respondent called the following witnesses;

Martin Flaherty: Victorian State Manager of Capital Transport.

Kevin Duong: Victorian Fleet Manager of Group Marketing and Administration Services Pty Ltd which is an associated entity of the Respondent.

Timothy Forster: National Support Analyst with Group Marketing and Administration Services Pty Ltd.

Background and evidence

The Respondent’s business

[4] The Respondent is part of the Capital Transport Group (Capital Transport) which was established in 1990 and is the largest privately owned courier and taxi truck business in Australia. Capital Transport has offices in Sydney, Melbourne, Brisbane and Perth, has a sub-contractor fleet of over 1500 vehicles and provides a range of transport and logistics services, mainly to commercial customers, including;

• On-demand transport services (couriers and taxi trucks);

• Permanent vehicles for hire by business;

• Home delivery solutions including whitegoods and furniture; and

• Logistics which includes access to Capital Transport’s national warehousing and distribution network 1.

[5] Capital Transport operates via a collection of associated entities that operate and cover different business across Australia. There are multiple brands within Capital Transport that provide different services, including for example Comet Transport, Titan Taxi Trucks and Advance Transport 2. Relevantly for the purposes of the present matter, the following three entities exist within Capital Transport;

• Group Messengers Pty Ltd is the corporate entity that engages owner drivers;

• Group Marketing and Administration Services Pty Ltd is the corporate entity that employs employees of Capital Transport; and

• Capital Transport Services (Vic) Pty Ltd is the corporate entity that engages with and enters into contracts with customers 3.

[6] Contracts entered into by Capital Transport with its customers have standard conditions 4 including that;

• Capital Transport is able to sub-contract the relevant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWC 6039
Decision Date: 1 OCTOBER 2021

CaseChat Overview and Summary

Brett Powell brought an application against Group Messengers Pty Ltd, seeking relief for what he claimed was an unfair dismissal. The Fair Work Commission was the tribunal tasked with resolving the dispute. The central issue before the Commission was whether Mr Powell was an employee of Group Messengers Pty Ltd. If he was, the Commission would have jurisdiction to hear the application; if he was not, it would not.

The court considered the definition of an employee under the Fair Work Act 2009 (Cth). It examined whether Mr Powell fulfilled the criteria of being a person who provides services to another person (the employer) under a contract of employment. The Commission found that the terms of Mr Powell’s arrangements with the respondent did not meet the threshold for an employment contract. Instead, the Commission determined that Mr Powell was an independent contractor, not an employee. Consequently, the Commission did not have jurisdiction to hear the application for unfair dismissal. The application was dismissed.

The Fair Work Commission, recognising the importance of accurately defining the employment relationship, upheld the jurisdictional objection raised by Group Messengers Pty Ltd. This decision underscores the necessity for clear contractual terms to establish the nature of the working relationship between parties. The Commission's decision was based on the lack of an employment contract between the parties, thereby concluding that Mr Powell was not an employee of Group Messengers Pty Ltd.

Orders