Divek Marya v Network Transport Services Pty Ltd
[2015] FWCFB 8329
•2 DECEMBER 2015
| [2015] FWCFB 8329 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
Network Transport Services Pty Ltd
(C2015/6752)
VICE PRESIDENT WATSON | PERTH, 2 DECEMBER 2015 |
Appeal against decision [[2015] FWC 6135] of Commissioner Gregory at Melbourne on 8 September 2015 in matter number U2015/4789 – Contractor or employee – Whether grounds of appeal attract the public interest – Fair Work Act 2009, ss.382, 394, 400 and 604.
Introduction
[1] This is an appeal for which permission is required. 1 It arises from a decision of Commissioner Gregory who dismissed an application for an unfair dismissal remedy made by Mr Divek Marya against Network Transport Services Pty Ltd (respondent). The Commissioner considered an argument by the respondent that Mr Marya was not a person protected from unfair dismissal as he was an independent contractor and not an employee.2 The Commissioner concluded that Mr Marya was not an employee and accordingly dismissed the application.
[2] The Commissioner issued a decision on 8 September 2015 3 (Decision). The appeal was lodged against the Decision on 29 September 2015.
Principles on appeal
[3] An appeal under s.604 of the Fair Work Act 2009 (Cth) (Act) may only be pursued with the permission of the Fair Work Commission (Commission). This would normally require an appellant to demonstrate an arguable case of appealable error and to refer to other considerations which would justify the granting of permission to appeal. Although s.604(2) of the Act provides that the Commission may grant permission to appeal in a variety of circumstances, and must do so if it is satisfied that it is in the public interest, s.400 has the effect of altering the general approach to dealing with appeals in two significant ways in appeals relating to unfair dismissal remedy applications. Firstly, permission to appeal may be granted only where the Commission considers it is in the public interest to do so. 4 Secondly, where an appeal is based on an error of fact, the appeal can only be made on the ground that the decision involved a significant error of fact.5
Background
[4] The respondent provides transport services to its clients involving road transport of general freight in Melbourne and surrounding areas.
[5] The appellant commenced working for the respondent in July 2012. He was engaged to provide freight courier and delivery services to the respondent’s clients.
[6] That engagement ended in April 2015.
[7] On 13 April 2015 the appellant lodged an application for an unfair dismissal remedy. The respondent objected to the Commission exercising jurisdiction because, it said, the appellant was an independent contractor and not an employee.
[8] Before the Commissioner:
a) the appellant gave evidence on his own behalf to the effect that he was treated like an employee during the period of his engagement; and
b) the respondent called Mr Brendan Forehan, the National Group Operations Manager with a related body corporate to give evidence about the engagement of the appellant and the nature of the “Owner Driver Agreement” entered into between the appellant and the respondent. Mr Forehan was cross-examined by the appellant.
[9] The Commissioner examined all of the evidence and considered that evidence against the background of a number of decisions he was referred to including the decision of the Full Bench in Jiang Shen Cia trading as French Accent v Do Rozario, 6 Hollis v Vabu Pty Ltd,7 Abdalla v Viewdaze Pty Ltd t/a Malta Travel Service,8 Tull v Allied Express Transport Pty Ltd t/a Allied Express,9 Parker v Allied Express10 and On-Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No.3).11 Most of these decisions are well known authorities to be applied in matters where a contest exists as to whether or not a person is an independent contractor or an employee.
[10] The Commissioner examined the various indicia. 12 He applied those indicia in a way which balanced the competing submissions of the parties. The Commissioner concluded:
“I am satisfied, in conclusion, based on considerations of the indicia referred to above, that the nature of the relationship between Mr Marya and NTS was one of principal and independent contractor, rather than employer and employee.” 13
[11] The Commissioner found that Mr Marya was not an employee and dismissed the application.
Grounds of appeal
[12] The parties agreed that the appeal should be determined on the papers and on 26 October 2015 Directions were issued for the filing and service of submissions and evidence.
[13] The appellant filed in accordance with the Directions and submitted that the Commissioner had made nine errors of fact. In respect of seven of the matters identified by the appellant he submitted that the Commissioner had failed to consider relevant material. In respect of the other two matters the appellant submitted that the Commissioner had placed too much emphasis on the written contractual arrangements governing the relationship between him and the respondent.
[14] The grounds of appeal identified by the appellant were therefore confined to submissions that that the Commissioner made:
a) errors of fact; and/or
b) errors of law in how he applied those facts to determine whether the appellant was an independent contractor or employee.
[15] Having reviewed the material that was before the Commissioner we discern no significant error of fact in his conclusions. The Commissioner considered all of the relevant issues.
[16] The Commissioner then applied those facts to the various indicia and found that the appellant was not an employee. The Commissioner’s approach was orthodox. The Commissioner balanced the arguments put forward and his conclusion was reasonably open to him on the totality of the evidence. We are not satisfied that the Commissioner made a significant error of fact in concluding that the appellant was an independent contractor.
[17] We conclude this aspect of the appeal by finding that the Commissioner made no significant error of fact in his decision.
[18] The appellant also submitted that the Full Bench should consider new information in relation to training provided by the respondent and a screenshot of a text message. The appellant did not explain why that evidence could not have been obtained with reasonable diligence at first instance before the Commissioner. In any case, we are not satisfied that, had the new information been led before the Commissioner, there is a high degree of probability that his decision would have been different. We decline to have regard to the new information.
Public interest
[19] In relation to public interest the appellant submitted that there is “a diversity of decisions made in similar situations … [and that those] decisions had elements very similar to [his] claims, hence it is in the public interest for permission [to] appeal to be granted.”
[20] Mr Marya did not specifically address whether:
a) the matter raised issues of importance and general application; or
b) the Decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.
[21] We are satisfied that the approach adopted by the Commissioner was entirely orthodox. We are not satisfied that the legal principles applied by the Commissioner were disharmonious when compared with other decisions dealing with similar matters.
[22] Likely Mr Marya believes the Decision at first instance manifests an injustice, or the result is counter intuitive. However, it seems to us that the appeal was simply being used as a vehicle to rerun the case that had been conducted before the Commissioner in circumstances where Mr Marya was simply dissatisfied with the decision at first instance. That is not the purpose of an appeal.
Conclusion
[23] We are not satisfied that the appeal gives rise to any public interest considerations. It does not raise any issue of importance or general application which would attract the public interest. Further, we do not consider that the Decision otherwise manifests any injustice or was attended by any appealable error or any significant error of fact.
[24] Having considered all of the matters raised by Mr Marya, we are not satisfied for the purposes of s.400(1) that it would be in the public interest to grant permission to appeal.
[25]We refuse permission to appeal.
VICE PRESIDENT
Final written submissions:
Mr Marya on 15 November 2015.
Network Transport Services on 20 November 2015.
1 Fair Work Act 2009, s.604(1).
2 See Fair Work Act 2009, s.382.
3 [2015] FWC 6135.
4 Fair Work Act 2009, s.400(1).
5 Fair Work Act 2009, s.400(2).
6 [2011] FWAFB 8307.
7 (2001) 207 CLR 21.
8 (2003) 122 IR 215.
9 [2015] FWCFB 6227.
10 [2015] FWC 757.
11 [2011] FCA 366.
12 [2015] FWC 6135 at paragraphs [36] – [45].
13 Ibid at paragraph [46].
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