Brian Robeson v Atrium Hotel Mandurah Pty Ltd T/A Atrium Hotel

[2013] FWC 5141

[2013] FWC 5141

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brian Robeson
v
Atrium Hotel Mandurah Pty Ltd T/A Atrium Hotel
(U2013/339)

COMMISSIONER WILLIAMS PERTH, 8 AUGUST 2013

Termination of employment - jurisdiction - employee v contractor.

[1] This matter involves an application made by Mr Brian Robeson (Mr Robeson or the applicant) under section 394 of the Fair Work Act 2009 (the Act). The respondent to this application is Atrium Hotel Mandurah Pty Ltd T/A Atrium Hotel (the respondent).

[2] This matter has been referred for determination following two unsuccessful conciliation conferences.

[3] The applicant was engaged as the General Manager of the Atrium Hotel in 2010. The applicant asserts that he was dismissed from his employment in January 2013. The respondent submits that the applicant was not an employee and so there is no jurisdiction for this application to be made.

Background

[4] The Atrium Hotel is located in Mandurah, WA.

[5] The Atrium Hotel has 90 units which are individually owned.

[6] The Strata Company known as The Owners of “The Atrium” Strata Plan Number 11104 entered into a management agreement in 2009 appointing Atrium Hotel Mandurah Pty Ltd to be the manager and operator.

[7] In November 2010 Atrium Hotel Mandurah Pty Ltd engaged Mr Robeson as the General Manager.

[8] The question to be determined is whether the relationship betweenAtrium Hotel Mandurah Pty Ltd and Mr Robeson was that of employer and employee.

[9] At the hearing of this matter Mr Robeson was self represented and gave evidence on his own behalf.

[10] Evidence for the respondent was given by Mr Sardi who owns one of the units in the Atrium Hotel. The Strata Company is managed by an elected Council. Mr Sardi was a Member of the Council at the time the applicant was engaged as General Manager.

[11] Evidence was also given for the respondent by Mr Brophy who owns one of the units in the Atrium Hotel. In 2010 he was the Chairman of the Strata Company’s elected Council.

Factual findings

[12] In June 2010 a company called the Mandurah Convention and Exhibition Centre Pty Ltd was registered 1. Mr Robeson was then and still is one of the two directors of the company and is the Company Secretary. Mr Robeson is also a 50% Shareholder of Mandurah Convention and Exhibition Centre Pty Ltd. The company operates the Mandurah Conference Centre which is adjacent to the Atrium Hotel.

[13] Around September 2010 the respondent advertised a position of General Manager.

[14] Some of the Atrium Hotel unit owners had mentioned to Mr Robeson that he should consider applying. At the time the Mandurah Conference Centre was in start up mode and could not support many employees or working directors and Mr Robeson decided he should apply for the position. Mr Robeson believed that it would not only help him financially if he gained the position but would also allow him to improve the damaged Atrium Hotel brand which would ultimately assist the Mandurah Conference Centre.

[15] Mr Robeson submitted a job application which opened as follows:

“The following documentation forms the basis for my application for the position of General Manager with the Atrium Hotel.

Whilst I would take personal responsibility for the day to day running and management of the venue, this application is supported by the team at my disposal. The team consists of, but not limited to:

Ø Creative & Design

Ø Operations & Logistics

Ø Accounting & Administration

Ø Conference & Event Management

Ø Food & Beverage Specialists

Ø Human Resources

Ø Sales & Marketing

Ø Audiovisual & Production

Supporting my personal fourteen years experience in hospitality management the team can deliver a wide spectrum of professional services linked to the successful results required by the hotel and investors.”

[16] The personal information about Mr Robeson in his job application included the following:

“Personal Biography:

A Partner of InFront Events Australia, Director of Mandurah Conference Centre with over 20 years experience in Hospitality Management, Conference & Event Management, Audiovisual & Production and Tourism.

An active member of the conference, convention and tourism industry and a strong supporter and contributor to industry associations.

Ø Committee - Meeting Industry Association Western Australia (Past)

Ø Vice Chair/Director – Board of Directors, Perth Convention Bureau (Past)

Ø Chair – Marketing Committee, Perth Convention Bureau (Past)

Ø Consultant – Client Reference Group, Dedicated Convention & Exhibition Centre (Past)

Ø Member Fremantle Chamber of Commerce (Tourism Division)

Ø Platinum Member -Perth Convention Bureau

Ø Member Peel Chamber of Commerce

Ø Member Mandurah Visitors Centre

Employment History:

Ø Director Mandurah Conference Centre July 2010 – Current

Ø Partner InFront Events Australia / Destination Management Services 1999 – Current

Ø General Manager Staging Connections WA 1994 – 1999

Ø Director Leisure Audiovisual 1991 – 1994

Ø Hotel Management & Group Management Hospitality 1977 - 1991

Skill Sets:

Ø Accommodation, Food & Beverage, Conference Management experience

Ø MYOB and Accounting Practices

Ø Word, Excel, PowerPoint, Adobe Suites and General IT Proficiency

Ø Communication platforms such as Interspire Database Management, Skype, Facebook and Electronic Marketing

Ø Human Resources and Conflict Resolution

Ø Board/Committee Level Involvement and Reporting

Ø Purchasing and Stock Control

Ø Budgeting and Projections

Ø Financial Control / Debtors & Creditors

Ø Sales & Marketing

Summation:

It’s our intention to commit to Mandurah and the Peel region for the long term and as such we like to become immersed in the associations, networking, marketing and training sectors that support and perpetuate ‘BusinessTourism’ in the region.

I would like to think that my experience with Business Tourism, Marketing, Entertainment and Hospitality would be an asset to the Atrium Hotel. We are also becoming involved with TAFE and Murdoch University to develop trainingprograms for Hospitality & Tourism and Audiovisual & Production which will value add to what the Atrium Hotel has to achieve in the short term and long term to revitalise the product.

‘The Secret to Success is Survival’ and given the opportunity, I believe we can turn the Atrium Hotel around and develop a platform from which we can grow a substantial and sustainable future, and as such delivering the profitability and returns much needed by the investors.

What the Mandurah Conference Centre and the Atrium Hotel are trying to achieve are intrinsically linked and the merging of our products to enhance each others under one management style makes sense to me. The business to business opportunities are significant and I welcome the challenge of moving the Atrium Hotel to a place of profitability, professionalism and recognition in the market place as a serious player in Leisure and Business Tourism.

Should I be considered a suitable applicant for the position of General Manager of the Atrium Hotel, I’ve no doubt that we can remove the existing frustrations, re motivate the staff and build a team that will understand and appreciate where we need to go.

I look forward to meeting with you and the selection panel to further demonstrate how we can implement the correct initiatives to develop a winning culture via a team effort.

Kind regards

Brian Robeson”

[17] The paper on which Mr Robeson’s application was printed bore the watermark of the Mandurah Conference Centre and the footer of each page included the contact details for Mandurah Convention and Exhibition Centre Pty Ltd t/a Mandurah Conference Centre.

[18] In October 2010 the applicant was interviewed for the position.

[19] Mr Sardi and Mr Brophy were present at the interview.

[20] Mr Robeson gave a PowerPoint presentation that explained his other business interests including his involvement in the Mandurah Conference Centre.

[21] The Mandurah Conference Centre carries on business on a property adjacent to the Atrium Hotel.

[22] Mr Robeson’s presentation indicated that if he was appointed General Manager he would continue to play a role in the day-to-day management of the Mandurah Conference Centre.

[23] Mr Robeson mentioned that he could call upon a team of other people as required to assist him as the General Manager.

[24] Mr Robeson suggested that Mandurah Convention and Exhibition Centre Pty Ltd could come in as a management company however this was immediately rejected by Mr Brophy because as he explained the Atrium Hotel had been down the management company path before where a management company had taken a percentage of the profits and had their expenses paid including the employment of a General Manager and the Atrium Hotel did not want to do this again.

[25] At Mr Robeson’s suggestion it was agreed that could provide his services through one of his other businesses and he would invoice the Atrium Hotel on a monthly basis.

[26] It was resolved at a Council meeting on 30 October 2010 to appoint Mr Robeson as the General Manager on a monthly fee of $8 300 excluding GST payable on supply of an invoice in arrears 2.

[27] Accordingly Mr Brophy sent a letter of offer to Mr Robeson which in part said:

“Dear Brian

On behalf of the Council of Owners for the Strata Company known as “The Owners of ‘The Atrium’ Strata Plan No 11104” I am pleased to advise that you have been selected as the successful applicant to fill the position of General Manager for the Atrium Hotel Mandurah Pty Ltd and place before you the following offer of employment.

The basis of the employment offer is as follows

Ø Employment is offered on a contract basis and as such an ABN will be required

Ø The payment for services rendered will be at a rate of $8,300 (excluding GST if applicable) per month, payable in arrears on presentation of an invoice.

Ø A three (3) probationary period will apply from the date of commencement

Ø As this is a contracted position leave provisions as well as superannuation will not apply

Ø Key Performance Indicators for the position will be

Improvement in hotel occupancy to 55%

Increase return to owners to 20.6%

Property Presentation

Relationship with Council of Owners

Overall management of the budget

If these basic conditions are acceptable a full and detailed offer of employment will be prepared…”

[28] Around this time Mr Sardi had been appointed as the Director of the respondent and it fell to him to formalise the engagement of the applicant.

[29] Mr Sardi having no knowledge of legal matters found a standard offer of employment previously used by the respondent and amended that to conform with the arrangement that was discussed with the applicant at the interview and with the letter sent to the applicant by Mr Brophy.

[30] It was never Mr Sardi’s intention to engage Mr Robeson as an employee but rather that he would be engaged as a contractor and paid upon presentation of the tax invoice.

[31] The contract 3 dated 2 November 2010 that Mr Sardi drew up opens as follows:

“Dear Brian

Offer of Employment

I have pleasure in offering you employment as Manager for The Atrium Hotel Mandurah Pty Ltd (Company). Your terms and conditions of employment will be as set out in this letter (Letter of Employment) and your employment will commence on Monday November 8th 2010.”

[32] The form of the balance of the document is consistent with an offer of employment in terms of the details and wording with the following exceptions:

“Remuneration

6 The details of your remuneration package are as follows:

Base annual salary:- $99,600 per annum (excl GST if app)

Superannuation:- Not applicable

7 Your salary will be paid in arrears in equal monthly instalments upon presentation of an invoice showing your ABN into a bank account of your choice...

Annual leave

12 Not applicable

Personal/Carers Leave

13 Not applicable

Parental leave

16 Not applicable

Long Service Leave

17 Not applicable”

[33] The respondent also provided Mr Robeson with a copy of the employee handbook.

[34] Subsequently in around November 2010 Mr Robeson attended the annual meeting of the Strata Company accompanied by at least one other employee from the Mandurah Conference Centre and introduced them to the unit owners who were present as his “team”.

[35] Mr Robeson confirmed acceptance of the 2 November 2010 offer with his signature apparently on 8 November 2010 however this signed copy was not returned to the respondent until February 2011 at which time it was accompanied by a letter from Mr Robeson which read as follows:

“Dear Nino

Please find enclosed the ‘Contract of Management’ for the General management of the Atrium Hotel, an Organisational Chart and a copy of my Approved manager status.

Whilst the contract is in keeping with our initial discussions, if the board feels it appropriate I would like to see the contract linked to a bonus structure based on Performance, Revenue, Profit and or a combination of the above.

The contract is not reliant on the bonus structure but I feel it would be in both parties bestinterest if an incentive scheme was in place.

The Atrium Resort Hotel has a bright future and we’ve already made great in roads to the development and delivery of a far superior product than realised in the past few years. It’s an exciting project and we appreciate the support the board is giving.

I believe the board and the investors have every right to expect an era of Growth, Profitability and Stability.

Kind regards

Brian Robeson”

[36] On a monthly basis the Mandurah Conference Centre would send a tax invoice to the respondent which included an amount of $ 9 300 including GST for what was for example described as “Management Fee December 2012”. Mr Robeson agrees this was the amount he would invoice the respondent for his engagement as General Manager every month.

[37] The demands of the General Manager position were such that Mr Robeson was required to work seven days a week and in fact stayed in the Atrium Hotel.

[38] Because the corporate market and the public saw the Atrium Hotel and the Mandurah Conference Centre as a single resort, due to them being under one ownership prior to 2007, Mr Robeson continued to market them as one complex notwithstanding their separate ownership.

[39] An employee of the Mandurah Conference Centre, Ms McQuade, took responsibility under Mr Robeson for the functions and events for both premises because from a marketing perspective they were deemed as one by the public anyway. The same monthly invoices from the Mandurah Conference Centre which included the charge for Mr Robeson also included an amount of $2 500 which was described as “Functions Management” to cover Ms McQuade’s work for the respondent.

[40] Mr Robeson did attend monthly meetings of the Strata Company’s Council. Mr Sardi’s contact with Mr Robeson would commonly be only once a month, however Mr Sardi did more regularly oversight Mr Robeson’s work towards the end of his period with the respondent to ensure that the Council’s directions were being followed because there were then some problems.

[41] Mr Robeson had a budget to work within and was free to operate within those bounds.

[42] Whilst the applicant was engaged as the General Manager with the respondent he was also receiving some payments from Mandurah Convention and Exhibition Centre Pty Ltd.

[43] Mr Robeson did not receive any group certificate (PAYG payment summary) from the respondent.

[44] The management agreement (see paragraph 6 above) provides at clause 13.1 that:

“The General Manager will be, and at all times remain, an employee of the Manager.”

[45] The Atrium Hotel Mandurah Pty Ltd is the party to the management agreement which is identified as the “Manager”. The amounts received from the Atrium Hotel for the monthly invoices generated by the Mandurah Conference Centre for the General Manager’s services where included in the Mandurah Conference Centre’s accounts as income.

The legislation and principles

[46] Section 394 of the Act provides that a person who has been dismissed can make an unfair dismissal remedy application to the Commission. Section 390 of the Act says the Commission can only order a remedy if satisfied the person is “protected from unfair dismissal” at the relevant time. Under section 382 of the Act one of the requirements for a person to be “protected from unfair dismissal” at the relevant time is that the “person is an employee” at that time.

[47] If Mr Robeson was not an employee he cannot pursue this application.

[48] In Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario 4 a Full Bench of then Fair Work Australia summarised the approach to distinguishing between employees and independent contractors as follows:

“[30]...

(1) In determining whether a worker is an employee or an independent contractor the ultimate question is whether the worker is the servant of another in that other’s business, or whether the worker carries on a trade or business of his or her own behalf: that is, whether, viewed as a practical matter, the putative worker could be said to be conducting a business of his or her own of which the work in question forms part? This question is concerned with the objective character of the relationship. It is answered by considering the terms of the contract and the totality of the relationship.

(2) The nature of the work performed and the manner in which it is performed must always be considered. This will always be relevant to the identification of relevant indicia and the relative weight to be assigned to various indicia and may often be relevant to the construction of ambiguous terms in the contract.

(3) The terms and terminology of the contract are always important. However, the parties cannot alter the true nature of their relationship by putting a different label on it. In particular, an express term that the worker is an independent contractor cannot take effect according to its terms if it contradicts the effect of the terms of the contract as a whole: the parties cannot deem the relationship between themselves to be something it is not. Similarly, subsequent conduct of the parties may demonstrate that relationship has a character contrary to the terms of the contract.

(4) Consideration should then be given to the various indicia identified in Stevens v Brodribb Sawmilling Co Pty Ltd and the other authorities as are relevant in the particular context. For ease of reference the following is a list of indicia identified in the authorities:

● Whether the putative employer exercises, or has the right to exercise, control over the manner in which work is performed, place of work, hours of work and the like.

Control of this sort is indicative of a relationship of employment. The absence of such control or the right to exercise control is indicative of an independent contract. While control of this sort is a significant factor it is not by itself determinative. In particular, the absence of control over the way in which work is performed is not a strong indicator that a worker is an independent contractor where the work involves a high degree of skill and expertise. On the other hand, where there is a high level of control over the way in which work is performed and the worker is presented to the world at large as a representative of the business then this weighs significantly in favour of the worker being an employee.

‘The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter’s order and directions.’ ‘[B]ut in some circumstances it may even be a mistake to treat as decisive a reservation of control over the manner in which work is performed for another. That was made clear in Queensland Stations Pty. Ltd v Federal Commissioner of Taxation, a case involving a droving contract in which Dixon J observed that the reservation of a right to direct or superintend the performance of the task cannot transform into a contract of service what in essence is an independent contract.”

● Whether the worker performs work for others (or has a genuine and practical entitlement to do so).

The right to the exclusive services of the person engaged is characteristic of the employment relationship. On the other hand, working for others (or the genuine and practical entitlement to do so) suggests an independent contract.

● Whether the worker has a separate place of work and or advertises his or her services to the world at large.

● Whether the worker provides and maintains significant tools or equipment.

Where the worker’s investment in capital equipment is substantial and a substantial degree of skill or training is required to use or operate that equipment the worker will be an independent contractor in the absence of overwhelming indications to the contrary.

● Whether the work can be delegated or subcontracted.

If the worker is contractually entitled to delegate the work to others (without reference to the putative employer) then this is a strong indicator that the worker is an independent contractor. This is because a contract of service (as distinct from a contract for services) is personal in nature: it is a contract for the supply of the services of the worker personally.

● Whether the putative employer has the right to suspend or dismiss the person engaged.

● Whether the putative employer presents the worker to the world at large as an emanation of the business.

Typically, this will arise because the worker is required to wear the livery of the putative employer.

● Whether income tax is deducted from remuneration paid to the worker.

● Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks.

Employees tend to be paid a periodic wage or salary. Independent contractors tend to be paid by reference to completion of tasks. Obviously, in the modern economy this distinction has reduced relevance.

● Whether the worker is provided with paid holidays or sick leave.

● Whether the work involves a profession, trade or distinct calling on the part of the person engaged.

Such persons tend to be engaged as independent contractors rather than as employees.

● Whether the worker creates goodwill or saleable assets in the course of his or her work.

● Whether the worker spends a significant portion of his remuneration on business expenses.

It should be borne in mind that no list of indicia is to be regarded as comprehensive or exhaustive and the weight to be given to particular indicia will vary according to the circumstances. Features of the relationship in a particular case which do not appear in this list may nevertheless be relevant to a determination of the ultimate question.

(5) Where a consideration of the indicia (in the context of the nature of the work performed and the terms of the contract) points one way or overwhelmingly one way so as to yield a clear result, the determination should be in accordance with that result. However, a consideration of the indicia is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture of the relationship from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another. The ultimate question remains as stated in (1) above. If, having approached the matter in that way, the relationship remains ambiguous, such that the ultimate question cannot be answered with satisfaction one way or the other, then the parties can remove that ambiguity a term that declares the relationship to have one character or the other.

(6) If the result is still uncertain then the determination should be guided by ‘matters which are expressive of the fundamental concerns underlying the doctrine of vicarious liability’ including the ‘notions’ referred to in paragraphs [41] and [42] of Hollis v Vabu.” (Endnotes omitted)

Consideration

[49] In light of the applicable principles above what does the evidence in this matter objectively indicate was the true nature of the relationship?

[50] Mr Robeson’s application for the General Manager position is expressed as if he is representing one business offering its services to another business, the respondent. This can be seen in the references in the application to Mr Robeson having a team at his disposal with a range of other professional skills and competencies. This business to business approach is reinforced by the explanation in the summary of the application that it is “our intention” to be involved throughout the surrounding region for the long term and to be involved in a range of other business networking and training activities. Mr Robeson’s application points out that this involvement, in assisting TAFE and the Murdoch University develop trade training programmes for hospitality and tourism, will add value to what the Atrium Hotel wants to achieve.

[51] The fact that Mr Robeson himself viewed his application to the respondent as one business offering its services to another is made plain in his application where he makes the following closing statement:

“What the Mandurah Conference Centre and the Atrium Hotel are trying to achieve are intrinsically linked and the merging of our products to enhance each others under one management style makes sense to me. The business to business opportunities are significant and I welcome the challenge of moving the Atrium Hotel to a place of profitability, professionalism and recognition in the market place as a serious player in Leisure and Business Tourism.”

[52] Self-evidently Mr Robeson saw that his engagement as the General Manager with the Atrium Hotel, if carried out successfully, would have indirect benefits for his own business interests in the adjacent Mandurah Conference Centre.

[53] The manner in which Mr Robeson approached this application as explained above and the fact that the application was printed on paper bearing the Mandurah Conference Centre watermark and footer is not consistent with an individual applying for a position of employment.

[54] The fact that Mr Robeson suggested to the respondent that perhaps they should consider engaging him as a management company is not consistent with an individual applying for a position of employment.

[55] Mr Robeson’s next suggestion to the respondent that one of his businesses should provide a monthly invoice to the respondent for his services is not consistent with him at that time believing he was entering into an employment relationship.

[56] The letter following the interview sent to Mr Robeson by Mr Brophy offering him the position of General Manager is mixed in its terms. That letter expressly refers to an offer of employment being made and refers to a three month probationary period and that if the conditions therein are acceptable a detailed offer of employment will be preceded by the respondent. These references are indicative of the parties intending to enter into an employment relationship.

[57] However that letter of offer also details the conditions that the “employment” is offered on a “contract basis” and as such an ABN will be required and that payment will be on presentation of a monthly invoice and that because the offer is a contract position leave provisions and superannuation will not apply. All of these conditions are indicative of the intended relationship being that of principal and contractor.

[58] The evidence is that Mr Sardi drew up a detailed contract using a standard contract of employment which he amended to incorporate the conditions mentioned in the original offer not appreciating the distinctions between contracts of service and contracts for services.

[59] Accordingly the employment contract dated 2 November 2010, ultimately signed by the applicant some time later, on its face suggests the relationship is that of employer and employee however again it includes the conditions about invoicing, ABNs and the absence of superannuation, annual leave, personal carers leave, parental leave and long service leave all of which to the contrary suggest that the relationship was not an employment relationship.

[60] In February of 2011 when returning to Mr Sardi the signed contract Mr Robeson in his covering letter referred to the document as “the Contract of Management ” for the General management of the Atrium Hotel...” which is not indicative of Mr Robeson understanding the relationship between him and the respondent being one simply of employer and employee.

[61] With respect to the control over the manner in which the work was performed there is little evidence of substance put before the Commission by either party and this issue does not indicate in either direction what the true nature of the relationship was.

[62] During his time as General Manager with the respondent Mr Robeson apparently did some work for the Mandurah Conference Centre for which was paid and of which he remained a Director and Shareholder.

[63] Whilst there is no evidence that the work of the General Manager was actually delegated or sub-contracted to others the manner in which Mr Robeson approached the application for the position demonstrates that he believed it would be entirely appropriate for this to occur, drawing as necessary upon the professional skills of others in his team being persons who were not employees of the respondent. The potential for the General Manager to delegate or sub-contract in this manner is not indicative of the relationship being that of employer and employee.

[64] It is clear that income tax was not deducted from Mr Robeson’s remuneration. It is also clear that he did not receive superannuation or any form of employee leave. These arrangements are not consistent with Mr Robeson being an employee.

[65] Mr Robeson was remunerated on a periodic basis which is indicative of an employment arrangement however more indicative of an independent contractor relationship is the fact that at his suggestion the Mandurah Conference Centre provided an invoice for his services each month to the respondent.

[66] The fact that clause 13 of the management agreement requires the Atrium Hotel to ensure that the appointed General Manager is at all times an employee does not determine that this is in fact what occurred.

[67] It is significant that Mr Robeson is an experienced business person. Mr Robeson has employed staff himself in the past and indeed the Mandurah Conference Centre of which he was a Director employed staff at that time he applied for the General Manager position. This was not a situation where the terms of the contract Mr Robeson entered into were put to him by the respondent as the dominant party on a take it or leave it basis 5.

[68] Mr Robeson presents as a competent and capable business person with considerable experience to the point where he was suggesting to the respondent alternative contractual arrangements. In particular it was he who suggested that his payment be made following monthly invoices that he would present to the respondent from another business. I am satisfied that Mr Robeson freely entered into the relationship with the respondent on terms which he understood and was readily accepting of.

[69] It is clear that Mr Robeson for the period he was engaged with the respondent as General Manager maintained his interest as a Shareholder and Director of the adjacent Mandurah Conference Centre. As he explained this was a fledgling business at that time and taking the position of General Manager provided some immediate income. It is also clear that Mr Robeson appreciated that any improvement he could make in the performance of the Atrium Hotel would potentially have economic benefits for the Mandurah Conference Centre. To that extent there is no doubt that his efforts as General Manager served both the interests of the Atrium Hotel and the Mandurah Conference Centre, something he had identified in his application. The evidence also is that the remuneration from the General Manager position which flowed from the respondent paying the monthly invoices from the Mandurah Conference Centre was reflected in the financial statements of the Mandurah Conference Centre as income.

[70] Having examined the individual matters above which are indicators as to whether the relationship was truly one of employer and employee or rather one of principal and contractor I am satisfied that the picture painted when one objectively considers these matters as a whole is that Mr Robeson was not an employee of the respondent but rather the real substance of the relationship in this case was one of principal and contractor.

[71] Accordingly because Mr Robeson is not an employee he is not able to make this application. I uphold the jurisdictional objection raised by the respondent and consequently will now dismiss this application. An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

B Robeson on his own behalf.

S Kemp, solicitor for the respondent

Hearing details:

2013.

Perth:

July 25.

 1   Exhibit R1.

 2   Exhibit R3, attachment PB1.

 3   Exhibit R2, attachment NS1.

 4   [2011] FWAFB 8307.

 5   On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No. 3) [2011] FCA 366 at [199].

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