Darrin Voskuilen v Ian M L Hookham T/A Easygo
[2013] FWC 2240
•22 APRIL 2013
[2013] FWC 2240 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Darrin Voskuilen
v
Ian M L Hookham T/A Easygo
(U2012/9867)
COMMISSIONER BULL | SYDNEY, 22 APRIL 2013 |
Application for unfair dismissal remedy - jurisdictional objection - employee versus contractor arrangement - where conflict in evidence Applicant’s evidence preferred.
[1] In this matter the Applicant, Mr Darrin Voskuilen alleged he was unfairly dismissed from his employment by the Respondent, Ian M L Hookham T/A Easygo. The Respondent raises two jurisdictional objections being:
● the Respondent is not the employer; and
● the Applicant is not an employee, rather a contractor.
[2] The Applicant, Mr Voskuilen represented himself, the Respondent, Mr Hookham was represented by his wife Ms Hookham. As both advocates were unfamiliar with conducting matters before the Fair Work Commission it was necessary for the Commission to take a more inquisitorial role than it would otherwise.
[3] The basis for the Respondent’s jurisdictional objection of contractor vis a vis employee arises from the wording of s.382 of the Fair Work Act 2009 (the Act), which provides as follows:
382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) …
(my emphasis)
[4] Under Chapter 3, Part 3-2 Unfair Dismissal of the Act at s.380, employee and employer are defined to mean a national system employee and national system employer. For the purposes of this application a national system employer is defined to mean a constitutional corporation (s.14 of the Act) and a national system employee is an employee employed by a national system employer. However, sections 30C and 30D of the Act extend this definition to include any employee and any employer in a referring state who would otherwise be outside the definitions. 1
[5] On 25 September 2009, at a meeting of the Workplace Relations Ministerial Council, the NSW government signed an agreement to refer its powers to the Commonwealth for the purposes of creating a national industrial relations system. The state parliament of NSW then enacted the Industrial Relations (Commonwealth Powers) Act 2009 No 115, to give legislative effect to this agreement. As such the Applicant and Respondent are a national system employer and employee.
Applicant’s case
[6] The Applicant’s evidence was that he commenced employment with the Respondent on 15 August 2011, having worked for one day the previous week on an unpaid basis as a trial to see if the parties would “gel” 2. The Applicant states his employment was terminated on 24 September 2012.
[7] The Applicant names Mr Ian M L Hookham T/A Easygo as his employer, as he states Mr Hookham interviewed him for the position of a maintenance grounds person at the Hookham’s residence at Glenorie, New South Wales, provided him the job and allocated and supervised his work.
[8] The Applicant applied for the role after seeing the position advertised on the employment recruitment website at (the Seek website). Mr Voskuilen states he was told the position was permanent by Mr Hookham. 3 The Applicant advised Mr Hookham that he wanted $53,000 as his salary, plus superannuation. He then requested written confirmation of his employment and salary details which he needed to apply for a bank loan.4
[9] On commencement, Mr Voskuilen also asked for a taxation declaration form which was provided to him by Mr Hookham and completed.
[10] The Applicant states he was required to mow lawns and provide general maintenance support on the Hookhams’ investment and rental properties at Glenorie and Stanhope.
[11] Mr Voskuilen provided a copy of an email he received on his start date of 15 August 2011 sent at 5:36am from the email address [email protected],replicated below:
From: Sheryl (Easygo) [mailto:[email protected]]
Sent: Monday, 15 August 2011 5:36 AM
To: Darrin Voskuilen
Subject: Re: Resume - Darrin Voskuilen
Hi Darrin
Many thanks for your patience.
As discussed, we are very pleased to offer you the position of maintenance grounds person at 3340-3382 Old Northern Road, Glenorie. Details of the position are as advertised and outlined personally to you site, and include upkeep of the property grounds, maintaining the equipment and vehicles working as an integral part of our team.
Property security is an important aspect of the position and all comings and goings, times, vehicle details etc. need to be recorded daily in the diary, together with work undertaken including by contractors.
Commencing date: Monday, 15 August, 2011 at 7.30am
Hours: 40 per week, usually 7.30am to 4pm with half hour lunch break.
Remuneration: $1020.00 per week gross, or annually $53,040.00 per annum.
Gate Code: XXXX. Please keep code strictly confidential
The role requires strong time management and organizational skills working both independently and assisting other contractors on site if needed.
We look forward to working with you and growing the position as the property continues to develop. Welcome to the team.
Yours sincerely
Ian
IAN M L HOOKHAM
T: 02.9654.3420. | F: 02.9654.3480 | M: 0402.004488
[12] The email was purportedly sent from Ms Sheryl Hookham’s (the Respondent’s wife) email address and sent under the name of the Respondent. As can been seen from the email it confirms Mr Voskuilen’s employment as a maintenance grounds person, working 40 hours per week, usually between 7:30am and 4:00pm. Mr Voskuilen stated there were times when he needed to start or finish earlier or later. 5
[13] Mr Voskuilen tendered his 2011 diary which he was required to complete 6 and reflected that his hours worked were overwhelmingly from 7:30am to 4:00pm from his commencement until the end of his tenure in 2011. Mr Voskuilen did not retain the 2012 diary which he said was in the possession of the Respondent.
[14] During Mr Voskuilen’s employment he requested pay slips from Mr Hookham as he had been advised by his bank this was necessary to secure a bank loan. Mr Voskuilen tendered three pay slips 7 for three weekly pay periods which he was given by Mr Hookham. All three payslips of Mr Voskuilen reflect his engagement terms of a $1,020.00 per week wage, less tax. The wage slips also noted superannuation contributions and Mr Voskuilen’s annual leave accrual.
[15] Mr Voskuilen stated he worked with Mr Hookham at all times and that Mr Hookham provided training in mechanical repairs for some of the property’s machinery. 8 Mr Voskuilen stated that he had previously taken annual leave for which he was paid and that he received a net payment of $829.00 into his bank account each week. Mr Voskuilen stated that Mr Hookham would tell him each morning what work was to be done.9
[16] Mr Voskuilen was cross examined by Ms Hookham who put it to him that the payslips he had produced were fabricated and that the email of 15 August 2011, setting out his terms of employment was also fabricated. Mr Voskuilen categorically denied these assertions.
[17] It was also put to Mr Voskuilen that as he had retained the 2011 diary since his termination he had the opportunity to insert start and finish times in the diary to suit his arguments in this case.
[18] In response to a submission by Ms Hookham that Mr Voskuilen’s wife, Ms Rachael Jamieson, had fabricated the payslips Mr Voskuilen called his wife who was in court to give evidence on this point.
[19] Ms Jamieson’s evidence was that the payslips tendered by her husband had not been created by herself, and were, as stated by her husband provided to him by the Respondent.
[20] Mr Voskuilen asserted that things changed when he enquired about his group certificate and superannuation. 10
[21] Mr Voskuilen stated that he had only ever worked as an employee, was not a contractor, did not have his own business, and did not employee anyone else to assist him with his work. He further stated he would not be in a position to engage an employee on the wage he received.
[22] Mr Voskuilen denied that he was engaged at $25 per hour or that he had ever received a travel allowance.
Respondent’s Case
[23] Ms Sheryl Hookham gave evidence on behalf of the Respondent and advised that she and her husband owned an 83 acre property in Glenorie. They required a person to mow the lawns, do the gardening, pruning and watering on a come and go basis and had placed an advertisement for the position on the Seek website. The position was to be a contractor position where the contractor could come and go as they liked as long as the work was undertaken.
[24] Ms Hookham advised the Commission that in addition to Mr Voskuilen’s position as a contractor, other contractors were engaged on a similar basis including cleaners, a pool man, and a septic tank man. 11
[25] Ms Hookham gave evidence that Mr Voskuilen was employed for 30 hours per week at $25.00 per hour, plus a travel allowance of $79 per week which totalled $829 per week. Mr Voskuilen had no fixed hours. 12
[26] Ms Hookham stated the company named EasyGo Travellers Service was owned by her and her husband and had never employed a gardener. Ms Hookham stated that the Applicant had been engaged as a contractor. 13
[27] Ms Hookham testified that the $829 per week was paid out of her personal bank account each week but there was no paper work reflecting the principal/contractual arrangement. No taxation was withheld and no superannuation was paid.
[28] Ms Hookham alleged that the email sent on 15 August 2011, and the payslips provided to the Commission were fabricated documents and not provided by herself or her husband.
[29] Ms Hookham stated that Mr Voskuilen came and went as he pleased and worked without instruction. Ms Hookham did not accept that Mr Voskuilen started at 7:30am and finished at 4:00pm. 14
[30] Ms Hookham alleged that Mr Voskuilen engaged on occasions other persons who she could not identify to assist him with his work. 15
[31] Ms Hookham called the Respondent Mr Hookham to give evidence. Mr Hookham advised that he had not read the Applicant’s claim and had little if anything to do with the engagement or remuneration arrangements with Mr Voskuilen.
[32] Contrary to the submissions of Ms Hookham who denied that the Applicant had ever raised issues concerning his pay (see points 30-37 of the Applicant’s witness statement), Mr Hookham stated that Mr Voskuilen had raised pay issues which he referred to his wife to resolve. 16 In an email to the Commission dated 29 March 2013, Ms Hookham at Point 8 of the email denies that pay issues were ever raised by the Applicant.17
[33] Contrary to Ms Hookham’s evidence, Mr Hookham stated that Mr Voskuilen normally started at 7:30am and finished around 4:00pm. 18
[34] Much of Mr Hookham’s evidence varied from that of his wife.
[35] The Respondent also called Mr Tim Eato to give evidence on the Respondent’s behalf. Mr Eato stated he was engaged on a contractor basis to do repairs on a generator on the property. Mr Eato had visited the Hookham’s property once or twice a month and had spoken to the Applicant. Mr Eato stated that he recalled on 7 February 2012 that Mr Voskuilen had told him:
‘I don’t really need to work because my wife is high up in the Commonwealth Bank. I come and go as it suits me, I don’t need to work, this is just pocket money.’ (Exhibit R2)
[36] I do not find Mr Eato’s evidence of any great assistance in terms of relevance. He was completely unaware of the Applicant’s regular remuneration arrangements and his recollection of events which occurred over 12 months earlier regarding the Applicant stating he came and went as it suited him was disputed by the Applicant.
Legal Principles - Contractor versus Employee
[37] No party drew the Commission’s attention to or relied on any authorities dealing with the manner in which independent contractors are distinguished from employees in this Commission.
[38] Generally an employment contract is a contract for personal service and the obligations of individual service under a contract of employment are not assignable to third parties. A contract which permits its discharge by another person, or does not compel the performance of work but pays only on results, is not a contract of employment. (see Denham v Midland Employers Mutual Association Ltd 19)
[39] This Commission has been guided by well established principles at common law that have been developed by courts to determine whether an unfair dismissal applicant is in fact an employee or an independent contractor.
[40] The Full Bench of Fair Work Australia in Jiang Shen Cai trading as French Accent v Do Rozario 20 stated as follows:
(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.
[41] The Full Bench then went on to list a set of considerations extracted from various authorities as being relevant to whether:
● the putative employer exercises, or has the right to exercise, control over the manner in which work is performed, place or work, hours of work and the like.
● the worker performs work for others (or has a genuine and practical entitlement to do so).
● the worker has a separate place of work and/or advertises his or her services to the world at large.
● the worker provides and maintains significant tools or equipment.
● the work can be delegated or subcontracted.
● the putative employer has the right to suspend or dismiss the person engaged.
● the putative employer presents the worker to the world at large as an emanation of the business.
● income tax is deducted from remuneration paid to the worker.
● the worker is remunerated by periodic wage or salary or by reference to completion of tasks.
● the worker is provided with paid holidays or sick leave.
● the work involves a profession, trade or distinct calling on the part of the person engaged.
● the worker creates goodwill or saleable assets in the course of his or her work.
● the worker spends a significant portion of his remuneration on business expenses.
[42] Not all these indicia are relevant in this matter, nor is the list exhaustive as the Full Bench stated at paragraph 30:
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.
[43] In ACE Insurance Limited v Trifunovski 21 a Full Bench of the Federal Court considered the principles of contractor versus employee. Justice Buchanan examined in detail the distinctions between the two contractual concepts while referring to the decision in Hollis v Vabu Pty Limited22he stated:
It appears to me to have been in Hollis that a real emphasis was authoritatively placed on the notion of working in the business of another, rather than in the business of the individual.
[44] There is no evidence in this matter that Mr Voskuilen ran a business or made investment in, or a commitment to, a business of his own.
[45] At paragraph 102, Buchanan J concludes that there is no single orunifying test to determine whether an employment relationship existsand at paragraph 107, stated:
However, in cases of the present kind, where it is necessary to examine whether a particular relationship is one of employment, or of a different character, it now seems established in Australian law that all the circumstances should be taken into account. In Hollis the majority noted (at [24]):
It should be added that the relationship between the parties, for the purposes of this litigation, is to be found not merely from these contractual terms. The system which was operated thereunder and the work practices imposed by Vabu go to establishing “the totality of the relationship” between the parties; it is this which is to be considered.
Conclusions
[46] There was a significant degree of conflict in the evidence presented by the Applicant and the Respondent.
[47] Mr Voskuilen and his wife presented their evidence in a forthright and unequivocal manner. Whereas, Ms Hookham, was at times both equivocal and contradictory. Mr Hookham’s evidence in a number of aspects contradicted that of his wife’s. Where there is a conflict in the evidence I prefer the evidence of the Applicant and his wife.
[48] The Commission has no reason to question the validity of the email of 15 August 2011, or the payslips provided by the Applicant demonstrating his employee status and finds the attempts by the Respondent to suggest otherwise, including the suggestion by Ms Hookham that Mr Voskuilen had altered the work diary to suit his own purposes in respect to his start and finish times to be disingenuous.
[49] Nor do I accept the Respondent’s proposition that on occasions the Applicant engaged another worker to provide assistance with his duties. I find it unrealistic to accept that the Applicant receiving $829.00 per week would be in a financial position to engage another worker.
[50] I have considered all of the evidence and submissions put before the Commission. Based on this material, the circumstances of this case need to be considered against the indicia I have referred to previously. As such I conclude as follows:
a. The Applicant responded to a job advertisement and did not advertise his services as being available at large.
b. The Applicant received an email confirmation from Ms Hookham outlining his employment arrangements as an employee.
c. Mr Hookham controlled the work performed by the Applicant and where he worked.
d. The control exercised by Mr Hookham over the Applicant was the control generally expected of an employer over an employee.
e. The Applicant received copies of pays slips when requested, indicating PAYE taxation deductions that had been made, that superannuation contributions had been made and annual leave was accruing.
f. The Applicant did not perform work for anyone else.
g. The Applicant did not have an ABN or invoice the Respondent for his work. The Respondent did not require the Applicant to have an ABN.
h. The Applicant was paid a regular weekly amount into his bank account. The amount did not vary regardless of the work performed or hours worked by the Applicant.
i. The Applicant was paid while on annual leave.
j. The Applicant did not provide any equipment or tools of trade.
k. The Applicant used the Respondent’s facilities.
l. The Applicant attended the same worksite each day being the Respondent’s properties.
m. The Applicant worked regular hours from 7.30am to 4.00pm each day with some flexibility to suit his personal requirements.
n. The Applicant did not assign his work to any other person, and did not engage anyone else to assist with his duties.
o. The Applicant did not create any goodwill.
p. The Applicant spent none of his earnings on business expenses.
q. The Applicant took no commercial risk in his activities, and he could not make a loss.
[51] The overwhelming impression from the evidence is that Mr Voskuilen was an employee. The day to day working arrangements had every appearance of an employment relationship as summarised above.
[52] I struggle to find any supporting evidence that the Applicant was at law, a contractor.
[53] While not referred to by the Respondent, (presumably on the basis that the Respondent denies sending it) the email of 15 August 2011, makes reference to assisting other contractors on site if needed, leading to the inference that the Respondent’s understanding was that he was also a contractor. However, when this is read in conjunction with the balance of the email the impression conveyed is not one of principal/independent contractor.
[54] Both Mr and Ms Hookham denied that any company they owned employed the Applicant. Accepting this as a fact, I can only conclude taking into consideration that Mr Hookham provided and directed the Applicant’s work, interviewed the Applicant, advised him he was successful in securing the position, (Mr Hookham’s name appeared at the bottom of the email outlining his conditions of employment) that Mr Hookham employed the Applicant at the time of his termination of employment.
[55] Pursuant to the Commission’s power to correct or amend applications before the Commission under s.586(a) of the Act, I will amend the named Respondent by removing the reference to T/A Easygo.
[56] This application shall be remitted to the Commission’s Unfair Dismissal Unit for further programming and conciliation. This application ought to be resolved via a conciliated outcome and I commend the parties to that course prior to any further arbitrated proceedings.
[57] I find that Mr Voskuilen was protected from unfair dismissal being an employee not a contractor. I make no comment on the fairness or otherwise of the dismissal. The jurisdictional objections raised by the Respondent are dismissed.
COMMISSIONER
Appearances:
D Voskuilen on his own behalf.
S Hookham for the Respondent.
Hearing details:
2013.
Sydney:
10 April.
1 Section 51(xxxvii) of the Constitution provides a mechanism through which state parliaments can refer powers over matters to the Commonwealth Parliament. The Commonwealth Parliament is consequently provided the power to make laws with respect to those referred matters, but only for those states from which the matter is referred.
2 Transcript at PN767
3 Transcript PN765
4 Transcript PN762
5 Transcript PN 777
6 Exhibit A2
7 Exhibit’s A1 and A3
8 Transcript PN885
9 Transcript PN810
10 Transcript PN777
11 Transcript PN135
12 Transcript PN59
13 Transcript PN28 and PN752
14 Transcript PN322
15 Transcript PN76
16 Transcript PN724-728
17 Transcript at PN146
18 Transcript PN488-489
19 [1955] 2 QB 437 at 443
20 [2011] FWAFB 8307 at 30
21 [2013] FCAFC 3
22 (2001) 207 CLR 21
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