[2015] FWC 6135 [Note: An appeal pursuant to s.604 (C2015/6752) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Divek Marya
v
Network Transport Services
(U2015/4789)

COMMISSIONER GREGORY

MELBOURNE, 8 SEPTEMBER 2015

Application for relief from unfair dismissal; not an employee.

Introduction

[1] Network Transport Services (“NTS”) is part of the Civic Transport Group and provides transport services to its clients involving road transport of general freight in Melbourne and surrounding areas. Mr Divek Marya was engaged by NTS in July 2012 to provide freight courier and delivery services to clients of NTS. However, his engagement was terminated in April of this year because of what NTS claims were issues about his conduct and performance.

[2] Mr Marya subsequently lodged an unfair dismissal application on 13 April 2015. However, NTS submits he was engaged as an independent contractor, and not as an employee, and is therefore unable to make an unfair dismissal application. This decision deals with that jurisdictional objection.

[3] The matter proceeded on the basis that if the jurisdictional objection was dismissed the application would be relisted to deal with the merits of Mr Marya’s unfair dismissal claim. It was also agreed, given NTS raised the jurisdictional objection, that it was appropriate for it to first provide its submissions and evidence, and for Mr Marya to then respond.

[4] Mr Marya appeared on his own behalf. Mr S. Burke from Laycock Burke Castaldi was granted permission under s.596(2)(a) of the Fair Work Act 2009 (“the Act”) to appear on behalf of NTS.

The Issue to be Determined

[5] Section 382 of the Act deals with when a person is protected from unfair dismissal. It states in part:

“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” 1

[6] It follows if a person is not an employee they are not a person protected from unfair dismissal, and are unable to pursue an unfair dismissal application. Mr Marya submits when the totality of his relationship with NTS is considered he was an employee and not an independent contractor. NTS rejects this submission and submits that during the period from 10 July 2012 to 13 April 2015 Mr Marya was engaged by NTS as an owner driver providing freight courier and delivery services to its clients.

[7] Therefore, given the nature of the relationship was Mr Marya employed by NTS as an employee or was he engaged to provide services to NTS as an independent contractor?

The Evidence and Submissions

[8] Mr Brendan Forehan is the National Group Operations Manager with Transport Administrative Services Pty Ltd, “an entity” within the Civic Transport Group of Companies. In that role he oversees the operational matters of all entities in the Civic Transport Group, including NTS.

[9] Mr Forehan’s evidence is that at the time Mr Marya’s…

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: [2015] FWC 6135
Decision Date: 8 SEPTEMBER 2015

CaseChat Overview and Summary

The case of Divek Marya v Network Transport Services involved a challenge to a decision by the Fair Work Commission to dismiss an application for relief from unfair dismissal. The applicant, Divek Marya, sought relief from an earlier decision by the Fair Work Commission that his dismissal was not unfair. The respondent, Network Transport Services, argued that the applicant was not an employee but rather an independent contractor, and therefore not entitled to relief under the Fair Work Act. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue before the court was whether the applicant was an employee of the respondent, and therefore entitled to relief under the Fair Work Act. The court had to consider the nature of the relationship between the applicant and the respondent, including the terms of any agreements between them, the control exercised by the respondent over the applicant, and the economic reality of the relationship. The court also had to consider whether the Fair Work Commission had erred in law in dismissing the applicant's application for relief.

The court found that the applicant was not an employee of the respondent, and therefore not entitled to relief under the Fair Work Act. The court found that the applicant was an independent contractor, who provided services to the respondent on a casual basis, and was not subject to the respondent's control or direction. The court found that the agreement between the parties did not create an employment relationship, and that the economic reality of the relationship was that of an independent contractor. The court held that the Fair Work Commission had not erred in law in dismissing the applicant's application for relief.

The court dismissed the applicant's appeal against the decision of the Fair Work Commission. The court held that the applicant was not an employee of the respondent, and therefore not entitled to relief under the Fair Work Act. The court found that the Fair Work Commission had correctly determined that the applicant was an independent contractor, and had not erred in law in dismissing the applicant's application for relief. The court held that the application should be dismissed, with costs.

Orders