David Motbey v Mitchell Newman
[2025] FWC 345
•6 FEBRUARY 2025
| [2025] FWC 345 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
David Motbey
v
Mitchell Newman
(C2024/7589)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 6 FEBRUARY 2025 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether applicant was an employee – jurisdictional objection dismissed – matter to be listed for conference.
Mr David Motbey (Mr Motbey) lodged a general protections application involving dismissal to the Fair Work Commission (the Commission) on 21 October 2024. The Applicant claimed that adverse action was taken against him by Mitchell Newman (the Respondent) under s.340of the Fair Work Act 2009 (Cth) (the Act).
The Respondent raised a jurisdictional objection that the Applicant was not dismissed because he claimed that the Applicant was a volunteer who had agreed to perform some work in return for free accommodation and meals. For the Applicant to be eligible to make a claim under s.365 of the Act, the Applicant will need to establish that he was an employee and was dismissed in accordance with the definition in s.386 of the Act.
Following the Full Court of the Federal Court decision of Coles Supply Chain Pty Ltd v Milford,[1] the Commission must determine whether the Applicant was an employee who was dismissed before it can exercise powers under s.368 of the Act to deal with a dispute about whether the Applicant was dismissed in contravention of the general protections provision.
Parties were directed to file submissions and evidence. The matter was heard in person in Cairns on 10 January 2025. After seeking the views of the parties, the matter proceeded as a determinative conference.
Permission to Appear
Neither party sought leave to be represented at the Hearing and the Applicant and Respondent appeared for themselves.
Background
The Respondent is an individual by the name of Mitchell Todd Newman. Mr Newman provided in his Form F8A that the Applicant volunteered to perform tasks in exchange for accommodation and food and that he would personally give Mr Motbey some of his personal money if Mr Motbey was asked to do anything extra. The premises in question is the Mt Carbine Hotel (the premises or hotel). The background covers the jurisdictional objection only.
There is dispute between the parties about when and whether Mr Motbey commenced employment with Mr Newman, however there is agreement that the parties were at least aware they were working with each other between the dates of 10 August 2024 until an incident that occurred on 7 October 2024.
Was the applicant an employee or other than an employee?
The Respondent’s Submissions
I do not intend to repeat in detail all of the submissions made and evidence given, which can be found in the Digital Court Book (DCB) and were admitted into evidence at the hearing, however I have nonetheless had regard to all of that information in my considerations.
The Respondent did not file detailed submissions and chose to rely on their Form F8A and a statement from Mr Newman spanning 8 paragraphs, I don’t intend to repeat the entirety of the material other than to briefly note that the Respondent relevantly submitted that:
· The only agreement between Mr Newman and Mr Motbey was that Mr Motbey would be provided with accommodation, food, beverages, wi-fi, electricity and fuel for transport collecting supplies on behalf of the hotel;
· Mr Motbey would be given some of Mr Newman’s personal money if Mr Motbey was ever asked to or did anything extra as a reward; and
· A four day fishing trip occurred and in advance of the trip, Mr Newman paid for Mr Motbey’s training and certificate in managing a licensed hotel so that there would be someone with this qualification within an hour of the premises.
At hearing the Respondent gave evidence that:
· He was not the owner of the premises, nor was he an employee of the owner of the premises which he says is “the Boyce Hotel” but he admitted to being solely responsible for the management of the hotel for a period of at least 12 months;
· He knew Mr Motbey as a regular patron of the premises at least prior to 10 August 2024;
· An individual by the name of Sophia was a backpacker who performed cleaning duties in exchange for accommodation and would perform duties between 20-30 hours per week. A conversation was had between Mr Newman and Sophia about what duties would need to be performed, and the start times were agreed between themselves. Mr Newman said that Sophia told him that she was leaving for ‘down south’ to live with a partner and that with her leaving, he would be left to run the premises by himself;
· Mr Motbey would ‘often’ volunteer, prior to when Sophia left, when there was a rodeo or some other reason that the premises was busy;
· On 10 August the premises was busy due to a rodeo nearby, and on or around this date, he had a conversation with Mr Motbey that if he ‘wanted to hang around and help’ that he could stay in a caravan that Mr Newman paid for. Further, if Mr Motbey was helping (with the premises) he could eat and drink whatever he wanted, and that electricity and Wi-Fi would be available. Mr Newman would also pay for fuel for Mr Motbey if he was asked to pick anything up for the premises as Mr Newman did not have a driver licence at the time;
· He offered to pay Mr Motbey cash in hand if he performed tasks that were more than what would be expected but never specified how much;
· He went on a four-day fishing trip and Mr Motbey was left to run the premises. He claims this was the only period he had agreed to pay Mr Motbey for;
· He had asked for Mr Motbey’s bank details because he had agreed to pay Mr Motbey for the period that he was on the fishing trip;
· He acknowledged that he had on occasion directed Mr Motbey to travel to Mareeba to purchase beverages and/or supplies for the hotel;
· Hypothetically if Mr Motbey couldn’t purchase and transport the beverages, Mr Newman would instead use a transport company such as Bidfood/PDF. Mr Newman would often need Mr Motbey to make these kinds of deliveries at least twice weekly when the premises would run out of stock;
· There was no formal written agreement in place between the parties governing their relationship; and
· He agreed that he had paid for Mr Motbey to have the certificate to run a licensed premises so that Mr Motbey would be able to look after the premises without him when he was away.
The Applicant’s Submissions
I do not intend to repeat in detail all of the submissions made and evidence given, which can be found in the DCB and were admitted into evidence at the hearing, however I have nonetheless had regard to all of that information in my considerations.
The Applicant filed submissions and a witness statement with several annexures. The Applicant also relied on his form F8 material. I don’t intend to repeat the entirety of the material other than to briefly note that the Applicant relevantly submitted that:
On 7 August 2024, the Respondent acted inappropriately towards two female patrons and the Applicant. The Applicant asked the Respondent to cease acting inappropriately, after which a physical altercation occurred between the parties. The Respondent terminated the Applicant’s employment after the altercation;
The parties had agreed orally but not in writing that the Applicant would be paid $1,000 per week and provided with accommodation for performing duties at the Mt Carbine Pub Hotel;
The Applicant’s duties included serving alcohol, restocking the bar, cleaning glassware and preparing and serving food to patrons. The Applicant also states that he drove to and from Mareeba from Mr Carbine to transport supplies for the pub;
· The Applicant referred to a decision of the Full Bench of the Commission, Ma v Yan Massage Wynnum West Pty Ltd[2], which applied EFEX Group Pty LTD v Bennett[3] and Chiodo v Silk Contract Logistic[4]s. The decision, at [25], states that the Commission must examine the legal rights and obligations of the parties in determining if there is an employment relationship. To do so, the Commission must consider evidence of the terms agreed upon orally or infer them from evidence of the circumstances in which the contract was made and the dealings between the parties;
· Between 10 August 2024 and 7 October 2024, the Applicant received one payment of $500 in cash, which he deposited on 18 September 2024;
· The Applicant received instructions about his duties from Mr Newman in person and via text message;
· On 9 October 2024, the Applicant and Mr Newman exchanged a series of text messages in which Mr Newman agreed to make payment to Mr Motbey. In response, the Applicant provided the Respondent with his bank account details;
· On 11 October 2024, the Applicant made a compliant at Mt Molloy Police Station regarding the Respondent’s inappropriate behaviour towards the female patrons and the altercation between the parties;
· The Applicant submitted that the agreement described above was for the payment of money to the Applicant for the supply of labour. This would have the effect that Mr Motbey was a national system employee within the meaning of s.13 of the Act and Mr Newman was a national system employer within the meaning of s.14(1)(d) of the Act.
At hearing the Applicant gave evidence that:
He would collect alcohol and soft drinks from BWS and IGA in Mareeba, respectively, and would not collect these items from Bidfood or PFD Foods;
He was aware of Bidfood and PFD Foods, but was not aware of Mr Newman using these services for the Respondent;
He would store these items in the pool room, the fridges and along the bar. When doing so, he never ran out of space;
He worked for Mr Newman from 10 August 2024 to 7 October 2024. The incident resulting in his termination occurred on 7 October 2024;
He did not provide a witness statement from either of the female patrons referred to in his submissions and evidence because the first female patron was travelling to Darwin the day after October 7 and did not want to provide a statement. Additionally, the second patron did not want to go to police about the incident, but the police did speak to her; and
The Applicant is unsure of the status of his police complaint and last spoke to the police when he made his statement. He has not received further updates.
Is there a contract of employment in existence and was their consideration?
It was uncontested that no written contract of employment was in place. On the Applicant’s case there was a verbal contract to perform work in return for an agreed amount of money each day, free accommodation and free food and on the Respondent’s case there was a verbal contract for volunteer work to provide free accommodation and food except for the one time where he attended a four-day fishing trip where the Respondent agreed to pay the Applicant for his work. I also note that it was uncontested that previous people had also performed duties at the hotel for the benefit of the Respondent on the basis of being provided with free accommodation and free food.
On the basis of the evidence before me, including the evidence given at hearing, I prefer the evidence of the Applicant and find that in early August 2024, prior to 10 August 2024, there was a verbal agreement between the parties for the Respondent to pay the Applicant an amount of $1000 per week time worked,[5] free accommodation by use of a caravan located at the pub[6] and that the Applicant would in turn need to be available to work at any time between 9am and 9pm, 7 days a week.[7] I am satisfied that this agreement occurred between the parties in a discussion that ensued following the resignation of another staff member, Sophia, from the hotel.
I am also satisfied, and so find, that there was an intention by the parties to create legal relations.
In Susan Bergman v Broken Hill Musicians Club Ltd T/A Broken Hill Musicians Club[8], Steel C summarised the requirement for an intention to create legal relations as follows:
[40] An agreement to do something is only regarded as a contract if the parties intended the agreement to be legally binding and carry legal consequences. That is, if something goes wrong, if one party failed to act in accordance with the agreement, the other party would be entitled to take legal action to seek performance. In employment situations where work is intended to be performed for payment, the necessary legal relations are generally present.
[41] There are exceptions such as Teen Ranch Pty Ltd v Brown and Redeemer Baptist School v Glossop & Ors and counter-exceptions of Ermogenous v Greek Orthodox Community of SA Inc.
[42] Volunteer work by its definition does not, in general, involve this element as the usual motivation for the arrangement is altruism rather than private gain or material advantage. That is, the commitments between parties in such arrangements are moral rather than a legal and formal one. In this matter the applicant provided work in a capacity which is argued to be employment and have a contract of employment. The respondent asserts that she was a volunteer or other than an employee. In determining further whether a contract existed the question must be asked, can it reasonably be inferred that the parties intended to create legal relations?[9]
[references omitted]
In Ermogenous v Greek Orthodox Community of SA Inc[10], the High Court of Australia held:
…the search for the “intention to create contractual relations” requires an objective assessment of the state of affairs between the parties (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word “intention” is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.
[references omitted]
In undertaking the objective assessment of the state of affairs between the parties, it is well established that the existence of an agreement may be inferred from the subsequent conduct of the parties and evidence of the performance of the transaction by the parties.[11]
The following examples of conduct by the parties, inter alia, which I find occurred, following the commencement of that employment buttress my view that there was an intention to create legal relations through the arrangements made in the meeting in early August 2024:
The Applicant moved into a caravan located at the Mt Carbine Hotel, 6875 State Route 81, Mount Carbine, Queensland 4871;[12]
The Applicant first worked at the hotel on 10 August 2024;[13]
A sum of $500 cash was paid to the Applicant by the Respondent on or around 18 September 2024 which the Applicant deposited into his bank account. I note the payment of this money was inconsistent with the Respondent’s evidence that he only intended to pay the Applicant for his four-day fishing trip from 3 to 7 October 2024;[14]
The Applicant was required to be available to manage the hotel from 9am to 9pm, 7 days a week;
The Respondent taught the Applicant the daily routine and thereafter sent directions about work predominantly by text message,[15] including directions on:
o22 September 2024 to turn off a pump;[16]
o28 September 2024 to collect supplies from Mareeba;[17] and
o29 September 2024, to shut the pub early and take the Respondent to court the following day; and
The Respondent paid for the Applicant’s training and certificate in managing a licensed hotel a requirement to run the premises.
These examples illustrate the incongruity between the Respondent’s contention that the Applicant was a volunteer, free to come and go as he pleased, and what was actually happening in practice.
Accordingly, I find the Applicant was an employee of the Respondent from 10 August 2024.
Date of dismissal
It is not in dispute that the Applicant’s employment came to an end on 7 October 2024 at the initiative of the Respondent following an altercation. The reasons for the altercation are contested and it is unnecessary for me to make findings as to why the altercation occurred, because it is uncontested that the Respondent told the Applicant that he was required to immediately leave the premises or that his land cruiser would be burned.[18]
Determination
Given the above findings I am satisfied that an employment relationship existed.
Conclusion
The Applicant was dismissed at the initiative of the employer on 7 October 2024 in accordance with s.386(1) of the Act. The matter will be programmed for conference in accordance with s.368 of the Act.
DEPUTY PRESIDENT
Appearances:
D. Motbey Self-represented Applicant
M. Newman Self-represented Respondent
Hearing Details:
10 January 2025
Cairns Courthouse
Cairns
[1] [2020] FCAFC 152.
[2] [2024] FWCFB 419
[3] [2024] FCAFC 35
[4] [2023] FCA 1047
[5] Digital Court Book (DCB) p.16 at [5].
[6] Ibid.
[7] Ibid.
[8] [2011] FWA 1143.
[9] Ibid at [40]-[42].
[10] [2002] HCA 8.
[11] Raward v Vine Nominees P/L & Ors [2001] QSC 494 at [76].
[12] DCB p.16 at [7].
[13] Ibid.
[14] DCB p.16 at [9].
[15] Ibid at [9]-[10].
[16] Ibid pp. 16-17 at [11].
[17] Ibid
[18] DCB p.17-18 at [13]-[28].
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