Cheryle Lindner v Hanssen Pty Ltd T/A Hanssen Pty Ltd

[2014] FWC 3456

[2014] FWC 3456

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cheryle Lindner
v
Hanssen Pty Ltd T/A Hanssen Pty Ltd
(U2013/13356)

COMMISSIONER WILLIAMS PERTH, 30 MAY 2014

Application for relief from unfair dismissal.

[1] This decision concerns an application made by Ms Cheryle Lindner (the Applicant) for an unfair dismissal remedy made under section 394 of the Fair Work Act 2009 (the Act). The respondent is Hanssen Pty Ltd (the Respondent).

[2] The Respondent filed a Form F3 - Employer’s Response to Application for Unfair Dismissal Remedy (Form F3 - Employer’s Response) which raised a jurisdictional objection that the Applicant was not employed by the Respondent but rather provided services to the Respondent on a sub-contract basis.

The legislation

[3] Section 394 of the Act as set out below explains a person who has been dismissed may make an application such as this.

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[4] Section 386 of the act defines “ dismissed” as follows:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[5] In summary then a person has been “dismissed” if the person’s employment with his or her employer has been terminated on the employer’s initiative.

[6] This is consistent with section 379 of the Act which explains that these provisions are about the unfair dismissal of national system employees.

[7] Obviously if the person was not employed they cannot be “dismissed” and so cannot make an application under section 394 of the Act.

[8] On this background the preliminary question to be determined identified in the Respondent’s jurisdictional objection is whether the Applicant was an employee of the Respondent or not. The position of the Respondent is that the Applicant provided services to the Respondent as a result of a contractual arrangement with another company Besson (WA) Pty Ltd.

The evidence

[9] The Applicant gave evidence on her own behalf and a number of witnesses were called for the Respondent including Mr Gerardus Hanssen, a Director of the Respondent.

[10] The Applicant’s evidence in chief, provided in a written statement given in support of her application, did not address the jurisdictional objection the Respondent had explained in its Form F3 Employer’s Response. At the hearing of this matter the Applicant gave further oral evidence in response to the witness statements filed by the Respondent including that of Mr Hanssen, but again did not address the jurisdictional objection raised by the Respondent.

[11] Relevantly the evidence of Mr Hanssen was that in April 2006 the Respondent was operating from the premises in Belmont.

[12] In early 2006 Mr Hanssen met with Mr Edward Besson and the Applicant. Mr Besson and the Applicant were a married couple.

[13] Mr Hanssen had a discussion with Mr Besson and the Applicant about them providing services to the Respondent on a sub-contracting basis. The services to be provided were the co-ordination of tradesmen to carry out post construction maintenance work on buildings constructed by the Respondent. Mr Hanssen on behalf of Respondent with Mr Besson (Eddie) and the Applicant (Cheryle) entered into an Agreement (the Agreement) that:

a. Hanssen would engage Eddie and Cheryle’s company (Company) to carry out the Services.

b. Hanssen would provide office space at the Belmont Premises (Offices) for the Company to work from.

c. The Company would have to provide its own mobile phones but would be paid a weekly phone allowance of $50.

d. The Company would be paid an hourly rate for providing the Services and would provide Tax Invoices on a weekly basis to Hanssen.

e. The Services would be provided by the Company through Eddie or Cheryle or both.

f. There were no prescribed times as to when the Services were to be supplied. The Company could supply the Services at hours of its choosing (as long as the Services were provided to satisfactory standard).

[14] As the Agreement was a sub-contract arrangement and Mr Besson and the Applicant were not employed by the Respondent, no superannuation, holiday pay or sick leave was payable.

[15] The Company was Besson (WA) Pty Ltd trading as West Property Services (Besson). Mr Hanssen was unsure whether Besson was incorporated after the Agreement was made or before the Agreement was made.

[16] An ASIC Current and Historical Extract for Besson provided to the Fair Work Commission (the Commission) as part of Mr Hanssen’s evidence shows that:

a. Besson was incorporated on 5 April 2006 and is still registered.

b. Eddie was a director of Besson from 5 April 2006 to 23 February 2011.

c. Cheryle has been a director of Besson from 5 April 2006 onwards.

[17] Also as part of Mr Hanssen’s evidence a Current and Historical Business names Extract for West Property Services was provided to the Commission.

[18] Mr Hanssen’s evidence was that Besson commenced carrying out the services for the Respondent and issued weekly invoices from early April 2006 onwards.

[19] Mr Hanssen says that he saw Mr Besson or the Applicant at the Offices from time to time. Sometimes they were both there at the same time.

[20] Mr Hanssen provided to the Commission a large number of invoices issued by Besson including some in 2008 and in 2013. The invoices issued in 2008 show that:

a. Up to 19 hours were charged on one day (see invoice for week ending 27/7/08) which is consistent with my observations that both Cheryle and Eddie were working at the same time.

b. The daily hours worked fluctuated greatly.

c. Work was carried out on weekends.

[21] After a period of time Mr Besson ceased working for Besson. However Besson continued to provide services to the Respondent through the Applicant, pursuant to the Agreement.

[22] As at August 2013 the terms of the Agreement remained the same save that:

a. The services provided by Besson changed in that Besson was performing logistics co-ordination services in respect to Hanssen’s Karratha operations;

b. Besson was operating from offices provided by Hanssen at the Hazelmere Premises; and

c. Besson was not receiving a telephone allowance but continued to supply its own mobile phone as well as its own laptop.

[23] A second bundle of invoices was identified by Mr Hanssen 1 as invoices that had been issued by West Property Services to be paid by the Respondent for the services set out in the Agreement. These invoices cover various periods in 2008 through to August 2013.

[24] The Applicant agrees the invoices provided by the Respondent to the Commission are invoices that she made out for her services and were paid by the Respondent.

[25] The Applicant did not challenge the evidence of Mr Hanssen on these matters set out above.

[26] The invoices include the Applicant’s name and are generally weekly and record varying numbers of hours of activity for each day of the week Monday through to Sunday ranging from 1.75 to 11.5 hours. Some invoices are headed West Property Services others are headed Besson (WA) Pty Ltd T/AS West Property Services. The invoices include an Australian Business Number which is that of Besson (WA) Pty Ltd and show that GST has been added to the total amount to be invoiced. Some invoices include bank EFT details for an account named “Besson (WA) Pty Ltd T/AS West Property Services”.

[27] The Applicant received a letter terminating her services dated Thursday 22 August 2013 2. That letter is from Mr Hanssen and is on a Hanssen Pty Ltd letterhead and addressed to West Property Services Pty Ltd attention Cheryle Lindner. The letter is headed “Termination of Services”.

[28] The Applicant also provided the Commission with a personal reference from Mee-Mee Hanssen, apparently the Respondent’s Administration Manager, which is written on a Hanssen Pty Ltd letterhead. That letter opens as follows:

“I wish to confirm that Cheryle Lindner of West Property Services Pty Ltd worked for Hanssen Pty Ltd for approximately 8 years.”

Consideration

[29] The Applicant was put on notice by the Respondent as to its jurisdictional objection that she was not an employee of the Respondent. The Applicant has not addressed the Respondent’s jurisdictional objection by way of evidence to the contrary.

The evidence before the Commission which specifically addresses the nature of the relationship between the parties is exclusively that of Mr Hanssen. His evidence is quite clear and strongly supportive of the conclusion that the Applicant was not employed by the Respondent but rather was engaged by another business, Besson (WA) Pty Ltd which was trading as West Property Services, which had a contract with the Respondent to provide various services. I note that some of the final correspondence refers to West Property Services Pty Ltd rather than Besson (WA) Pty Ltd T/AS as West Property Services however this in no way alters this conclusion but rather indicates some confusion as to the true legal identity of the contractor.

[30] There is limited other evidence regarding the day-to-day interactions and relationship between the parties. There is in this evidence nothing which in any way suggests that the contractor arrangement Mr Hanssen gave evidence of was in some way a sham and that the true relationship between the Respondent and the Applicant was that of employer and employee.

[31] Considering the various indicia in this case I find that the real substance of the relationship between the Respondent and the Applicant was that of principal and contractor not employer and employee. I find that the Applicant was not an employee of the Respondent and so is not able to make this application.

[32] This application will be dismissed and an order to that effect will be issued.

COMMISSIONER

Appearances:

Ms C Lindner, the Applicant

Mr G Hanssen, the Respondent

Hearing details:

2014.

Perth:

May 1

Final written submissions:

Applicant, 11 February 2014

Respondent, 14 April 2014

 1   Exhibit R4

 2   Exhibit A3

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