Dr Mir Ahmad Rasoul Mofleh v Commonwealth of Australia (represented by the Department of Home Affairs)

[2020] FWC 5753

[2020] FWC 5753

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dr Mir Ahmad Rasoul Mofleh
v
Commonwealth of Australia (represented by the Department of Home Affairs)
(U2020/8578)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 13 NOVEMBER 2020

Application for an unfair dismissal remedy.

[1] Mir Ahmad Rasoul Mofleh (Dr Mofleh) has applied under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. Dr Mofleh submits that that he signed a “Deed of Offer” (the Deed) and returned it to Translation and Interpreting Services (TIS) however he did not receive any translation and/or interpreting jobs.

[2] Dr Mofleh received notification on 1 June 2020 that the Deed would expire on 30 June 2020 and that he would no longer receive service requests after that date. 1 Dr Mofleh submits he has been unfairly dismissed and his dismissal was harsh unjust and unreasonable.

[3] The Department of Home Affairs (the Department) objects to Dr Mofleh’s application on the following jurisdictional grounds:

a) Dr Mofleh cannot be an employee of the Department, as he was not engaged as an Australian Public Service employee pursuant to section 22 of the Public Service Act 1999 (Cth) (PS Act); and

b) The terms of the Deed make clear that Dr Mofleh was engaged as an independent contractor, and not as an employee of the Department.

[4] Dr Mofleh submits he is an Epidemiologist and a certified interpreter. He argues that the evidence supports a finding that he is an employee of TIS/The Department and that he is a victim of discrimination. 2

Procedural Background

[5] On 24 July 2020 the Fair Work Commission (Commission) issued directions for the filing of materials in regard to the jurisdictional objection that Dr Mofleh was not an employee and subsequently programmed the matter for a mention/directions hearing held by telephone on 7 August 2020. The purpose of the hearing was to deal with administrative and programming matters in preparation for the respondent’s jurisdiction objection.

[6] The mention/directions hearing commenced at 10:00am on 7 August 2020. At the commencement of proceedings Dr Mofleh made some submissions and then disconnected part way through. My associate contacted Dr Mofleh in an attempt to re-join him to the hearing however he declined to participate any further. The mention/directions hearing was subsequently adjourned.

[7] At 12:37pm that same day the Commission sent correspondence to the parties confirming the outcome of the hearing and Dr Mofleh’s refusal to participate in the hearing. The Commission also provided a link to the decision 3 referred to by the Department which it relies on in support of its objection that Dr Mofleh was not an employee of the Department and was not a person protected from unfair dismissal because he had not been an employee of the Commonwealth.

[8] The parties filed submissions in accordance with directions. The parties were notified in the absence of any objection I would proceed to determine the matter on the papers. No objections to this course of action were raised by Dr Mofleh and the Department corresponded with the Commission confirming they consent to the matter being determined on the papers.

Preliminary procedural matter

[9] In his Form F2 Dr Mofleh named Translation and Interpreting Services (TIS) as the Respondent. In his submission’s Dr Mofleh refers to the Respondent as TIS/the Department of Home Affairs

[10] The Department submits that it had been incorrectly named in Dr Mofleh’s application and that the correct legal name of the Respondent was “The Commonwealth of Australia (represented by the Department of Home Affairs)”. The parties were notified in the 7 August 2020 correspondence from the Commission that the name of the correct respondent was to be addressed by way of written submissions.

[11] Whilst not directly addressing the issue of identifying the correct name of the Respondent, in his submission’s Dr Mofleh refers to the Respondent as “TIS/The Department of Home Affairs” 4 and then again as the “Translation and Interpretation Service/ The Ministry of Home Affair.5

[12] On 9 August 2017, Dr Mofleh signed a Deed of Standing Offer for the provision of Interpreting and Translating Services to and on behalf of the Commonwealth of Australia as represented by the Department of Immigration and Border Protection (now, the Department of Home Affairs). 6

[13] The Department administers the Translating and Interpreting Services (TIS). TIS is an interpreting service for people who do not speak English that is used by agencies and businesses that need to communicate with their non-English speaking clients. 7 TIS is a trading name registered to the Department’s ABN and is not a separate legal entity.8

[14] On the evidence before me, I am satisfied that the name of the Respondent in this matter is The Commonwealth of Australia (represented by the Department of Home Affairs). I have utilised the discretion in s.586 of the Act to amend the application accordingly.

Initial Matters to be considered.

[15] The Commission may make an order for remedy if it is satisfied that Dr Mofleh was a person protected from unfair dismissal at the time of being dismissed. 9 I first must decide four matters before considering the merits of Dr Mofleh’s application. Those four matters are set out in section 396 of the Act as follows:

“(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[16] I am satisfied in relation to three of the four matters referred to in ss.396(a)-(d) above. There is no dispute between the parties and I am satisfied that Dr Mofleh’s application was made within the time prescribed in s.394(2) of the Act. The Department is not a small-business employer within the meaning of the Act, therefore the Small Business Fair Dismissal Code does not apply. The dismissal was not a case of genuine redundancy.

[17] There is however a dispute as to the fourth matter referred to in s.396(b) of the Act. It is therefore necessary to first determine whether or not Dr Mofleh was an employee of the Department before dealing with any other matters.

Jurisdiction Objection – was Dr Mofleh an employee of the Department?

[18] The Department submits that Dr Mofleh cannot be an employee of the Department as he was not engaged as an Australian Public Service employee pursuant to section 22 of the Public Service Act 1999 (Cth) (PS Act). They further submit that the terms of the Deed make clear that Dr Mofleh was engaged as an independent contractor and not an employee. 10

[19] The Department submits that as a Commonwealth Department, and an ‘agency’ for the purposes of the PS Act, it can only engage employees in a manner consistent with the PS Act 11 and refers to Section 6 of the PS Act which provides:

“(1) All persons engaged on behalf of the Commonwealth as employees to perform functions in a Department or Executive Agency must be engaged under this Act, or under the authority of another Act.

…..

(3) This section does not, by implication, affect any power that an Agency Head might otherwise have to engage persons as independent contractors.”

[20] Section 22 of the PS Act states:

“(1) An Agency Head, on behalf of the Commonwealth, may engage persons as employees for the purposes of the Agency.

(2) The engagement of an APS employee (including an engagement under section 72) must be:

(a) as an ongoing APS employee; or

(b) for a specified term or for the duration of a specified task; or

(c) for duties that are irregular or intermittent.”

[21] The Department submitted that there is no evidence to suggest that Dr Mofleh was engaged as an employee under section 22, or that this was the Departments intention. It submits that the Deed does not purport to create an engagement pursuant to the PS Act, rather the Deed makes it clear that Dr Mofleh was not engaged as an employee of the Department. 12

[22] The Department submitted two authorities which it relies on in support of its objection that Dr Mofleh was not an employee of the Department. The first was Re Australian Industrial Relations Commission and Another; Ex parte Commonwealth (Arends) 13 in which the Full Court of the Federal Court stated:

“If the relationship is contractual, the contract must be consistent with any statutory provision which affects the relationship. No agent of the Crown has authority to engage a servant on terms at variance with the statute. To the extent that the statute governs the relationship, it is idle to inquire whether there is a contract which embodies its provisions. The statute itself controls the terms of service: McVicar v Commissioner for Railways (N.S.W) [1951] HCA 50; (1951) 83 CLR 521, at p 527.”

[23] The Department submits, on the basis of section 6(1) and 22 of the PS Act, and the authority in Arends, it is clear that Dr Mofleh was not an employee of the Department and that the terms of the Deed were inconsistent with such an engagement. 14

[24] The Department further submits that section 6(3) of the PS Act makes it clear that, separately to its power to engage employees, an Agency Head may engage independent contractors. The Department submits that it was pursuant to its executive power, and not the power under section 22, that Dr Mofleh was engaged to perform work for the Department. 15

[25] The second authority relied on by the Department in support of its proposition that Dr Mofleh is not an employee of the Department is the Full Bench decision in Sarabjeet Pal v Commonwealth of Australia represented by the Department of Home Affairs (Pal). 16 The Department submits the decision of the Full Bench in Pal concerned a claim for unfair dismissal made by an interpreter against the Department. The applicant in Pal was engaged on terms contained in a Deed of Standing Offer derived from the same template deed used to create the Deed under which Dr Mofleh was engaged.

[26] Dr Mofleh makes a number of submissions. I have read all of Dr Mofleh’s filed material and have taken into consideration his submissions as far as they are relevant to the matters I have to determine. In summary Dr Mofleh submits that the evidence supports a finding that he is an employee of the Department and a victim of discrimination. 17

[27] Dr Mofleh submits whether a person is an employee or alternatively an independent contractor is to be answered by reference to an objective assessment of the nature of the relationship between an employee and an employer or the relationship between an independent contractor and its client. 18

[28] Dr Mofleh submits that in attempting to arrive at the right answer, the “correct interpretative tools are utilised”. I take this to mean that the Commission should give regard to the applicable authorities that provide guidance as to the relevant considerations it may have regard to when determining whether or not Dr Mofleh is an employee or not of the Department. Dr Mofleh submissions went to the common law indicia used to determine whether an individual is an employee or independent contractor. 19

[29] In reply the Department submits that consistent with the decision in Pal, the Commission ought to find that Dr Mofleh was not an employee of the Department. It submits that the position as to public sector employment is sufficiently clear from the legislation and authorities previously mentioned and relied on by the Department in support of its objections. 20

Consideration

[30] The Department relies on the operation of the PS Act and the Deed of Standing Offer signed by Dr Mofleh on 9 August 2017 in support of their objection being that Dr Mofleh cannot be an employee of the Department as he was not engaged as an Australian Public Service employee pursuant to section 22 of the PS Act. They further submit the terms of the Deed make clear that Dr Mofleh was engaged as an independent contractor and not as an employee of the Department.

[31] The Department relies on the decision in Pal. It is therefore useful to set out the following passages from the Full Bench’s decision in Pal:

“[2]Section 390(1)(a) of the Fair Work Act 2009 (FW Act) requires that the Commission must be satisfied that a person was “protected from unfair dismissal” at the time of being dismissed before it may make an order in the person’s favour for an unfair dismissal remedy. The definition in s 382 of when a person is “protected from unfair dismissal” includes (in paragraph (a)) a requirement that the person be “an employee”. “Employee” in that provision means a “a national system employee” (s 380), which expression is defined by s 13 to mean, relevantly “…an individual so far as he or she is employed, or usually employed … by a national system employer…”. Section 14 defines “national system employee”, and the definition includes (in paragraph (1)(a)) “the Commonwealth, so far as it employs, or usually employs, an individual.”

[3] The employment of persons by the Commonwealth of Australia is governed by the Public Service Act 1999 (Cth) (PS Act). Section 6(1) of the PS Act provides:

6 Engagement of employees in Department or Executive Agency

(1) All persons engaged on behalf of the Commonwealth as employees to perform functions in a Department or Executive Agency must be engaged under this Act, or under the authority of another Act.

(2) Subsection (1) does not apply to persons engaged on an honorary basis.

(3) This section does not, by implication, affect any power that an Agency Head might otherwise have to engage persons as independent contractors.

[4] Section 22 of the PS Act, in general terms, authorises “Agency Heads” (i.e. Departmental Secretaries or Heads of Executive or Statutory Agencies) on behalf of the Commonwealth to engage persons as employees for the purposes of the agency either as an ongoing “APS employee”, for a specified term or for the duration of a specified task, or for duties that are irregular or intermittent.” (references omitted).

[32] The Full Bench in Pal cited the reasoning and conclusion of Deputy President Clancy at first instance in relation to the question of public sector employment. The reasoning in the Deputy President's decision at first instance 21 is set out below:

“[35] Applying the principle from Director-General of Education v Suttling, for there to have been an engagement by the Department of Mr Pal as an employee, it had to have been consistent with s.6 of the PS Act. Section 6 provides that all persons engaged on behalf of the Commonwealth must be engaged either under the PS Act or under the authority of another Act. As far as the PS Act is concerned, there is nothing to suggest Mr Pal was an employee engaged by an Agency Head, on behalf of the Commonwealth, pursuant to s.22. Further, there is nothing before me to suggest the Department had authority under another Act to engage Mr Pal as an employee. In short, there was no evidence of Mr Pal having been engaged as an employee of the Commonwealth pursuant to a written contract of employment coming within the scope of s.6 of the PS Act. I am therefore satisfied that in this case, the Department did not exercise the statutory power of engagement pursuant to s.6 of the PS Act and note that Mr Pal acknowledged he does not have a document from the Commonwealth that describes him as an employee.

[36] Noting that s.6(3) of the PS Act also empowers the Department to engage persons as independent contractors, I am satisfied, having reviewed the terms of the Deed of Standing Offer, that this is what occurred in Mr Pal’s case despite his assertions to the contrary. The Deed of Standing Offer stated in express terms that the relationship between Mr Pal and the Commonwealth (through the Department) was not one of employment. Additionally, in executing the Deed of Standing Offer, Mr Pal specifically acknowledged that he was a Service Provider and not an employee. Further, Mr Pal agreed to the Department having the right to extend the Deed of Standing Offer at its discretion. I am satisfied that Mr Pal agreed to be bound by the terms of the Deed of Standing Offer, having signed it in the presence of a witness on 11 May 2015, and the Department’s right to extend it was validly exercised in the manner outlined above at [32]–[33]. Despite Mr Pal’s assertions, the Deed of Standing Offer did not require the parties to initial each of its pages and nor was there a requirement for it to be attached to any Notice of extension.

[37] I do not accept the proposition advanced by Mr Pal that the way in which the Deed of Standing Offer operated in practice made him an employee. Recognising in this case the Commonwealth does not concede that Mr Pal was an employee at common law, the following passage from Re Australian Industrial Relations Commission and Another; Ex parte Commonwealth is nonetheless apposite:

“The fact that subsequent "operational" factors such as the method of work and performance would have the hypothetical effect at common law that Mr Arends was an employee does not mean that he was in employment by authority of a law of the Commonwealth, particularly in circumstances where the instrument under which the contract was made was specific in stating that the contract did not effect employment. His own belief as to his status is not relevant.”

[38] Consistent with the conclusion of the Full Court in Re Australian Industrial Relations Commission and Another; Ex parte Commonwealth, having concluded that there is no evidence that Mr Pal was engaged as an employee either under the PS Act or the authority of another Act, and that he was instead engaged under a contract which specifically stated the relationship between him and the Department was not one of employment, it is not necessary for me to assess whether the terms of the Deed of Standing Offer did or did not meet the common law indicia of an employment relationship.

[39] As such, having been persuaded Mr Pal was not engaged as an employee under the PS Act, Mr Pal cannot have been an employee of the Department and therefore does not come within the definition of a national system employee. This being the case, Mr Pal was not an employee to whom Part 3-2 of Chapter 3 of the Act applies and was therefore not a person protected from unfair dismissal.” (references omitted)

[33] I respectfully adopt the Deputy President’s reasoning in consideration of Dr Mofleh’s Application. Therefore, for Dr Mofleh to be successful in his Application the evidence must support a finding that he was engaged pursuant to a written contract consistent with s.6 of the PS Act or under the authority of another Act. The evidence would need to support a finding that the Department exercised its powers on behalf of the Commonwealth pursuant s.22 of the PS Act.

[34] Dr Mofleh signed the Deed of Standing Offer on 9 August 2017 which was witnessed that same day. Dr Mofleh does not dispute that he signed the Deed, it is his contention that by signing the Deed he became an employee of the Department.

[35] An examination of the text of the Deed suggests otherwise. The Deed sets out the terms and conditions that applied to Dr Mofleh in providing services to the Department. Paragraph B of the Recitals to the Deed states that:

“The Department may from time to time request the provision of the Services by the Service Provider. The Service Provider acknowledges that there is no guarantee or assurance of any or any particular volume of the Services that will be provided under this Deed.” (emphasis added)

[36] At paragraph D of the Recitals to the Deed it states that:

“The Service Provider acknowledges that it is not, and it will not be, an employee of the Department in providing services.”

[37] Further, clause 7 of the Deed states that the relationship of the Services Provider is not that of an officer, employee, partner or agent of the Department. I am satisfied that by signing the Deed Dr Mofleh acknowledged that as a “Service Provider” he was not an employee of the Department.

[38] Applying the principles set out in paragraph [35] of the Deputy President’s decision, there is nothing before me by way of evidence to suggest Dr Mofleh was engaged as an employee by an Agency Head on behalf of the Commonwealth pursuant to s.22 of the PS Act. Further, there is no evidence before me to suggest the Department had the authority under another Act to engage Dr Mofleh as an employee. There is no evidence of a written contract engaging Dr Mofleh as an employee of the Commonwealth that would fall within the scope of s.6 of the PS Act. I am therefore satisfied that the Department did not exercise its statutory power pursuant to s.6 of the PS Act and engage Dr Mofleh as an employee.

[39] I do not accept the proposition advanced by Dr Mofleh that he was an employee. The Deed of Standing Offer signed by Dr Mofleh describes him as being the Service Provider. Dr Mofleh provided his Australian Business Number (ABN) in accordance with the requirements of the Deed. I have reviewed the Deed signed by Dr Mofleh and I have formed the view that the text of the Deed of Offer is substantially of the same wording as the Deed used by the Department to engage Mr Pal as set out in paragraph [30] of the Deputy President’s decision.

[40] I am satisfied having reviewed the terms of the Deed of Standing Offer, that the Department exercised its statutory powers pursuant to s.6(3) of the PS Act and engaged Dr Mofleh as an independent contractor. The expressed terms in the Deed describes the relationship between Dr Mofleh and the Commonwealth as that of a Service Provider and not an employee. Therefore, Dr Mofleh is not an employee of the Commonwealth and does not come under the definition of a national system employee under the Act. Consequently, Dr Mofleh is not an employee to whom Part 3-2 of Chapter 3 of the Act applies and was therefore not a person protected from unfair dismissal.

[41] Having found that Dr Mofleh was engaged as a Service Provider and not an employee of the Department and was therefore not a person protected from unfair dismissal, it is not necessary for me to assess whether the terms of the Deed of Standing Offer did or did not meet the common law indicia of an employment relationship.

[42] Having determined that Dr Mofleh was not a person protected from unfair dismissal, the Commission does not have jurisdiction to deal with his unfair dismissal application. Therefore Dr Mofleh’s unfair dismissal application must be dismissed. An order 22 to this effect will accompany this decision.

COMMISSIONER

Written submissions:

Respondent: 7 August 2020
Applicant: 20 and 21 August 2020
Respondent reply: 27 August 2020

Printed by authority of the Commonwealth Government Printer

<PR724029>

 1   Respondent’s Submissions at [6] & [57]

 2   Applicant’s Submissions, 21 August 2020,

 3   Sarabjeet Pal v Commonwealth of Australia represented by the Department of Home Affairs [2020] FWCFB 606

 4   Applicant’s Email 21 August 2020 at 10:43am

 5   Applicant’s Submissions, 21 August 2020

 6   Respondent’s Submissions, Document 1

 7   Respondent’s submission at [1]

 8   Ibid at [10]

 9 Section 390(1)(a) Fair Work Act 2009 (Cth)

 10   Respondent’s Submission

 11   Ibid at [32]

 12   Ibid at [34]

 13 [2005] FCAFC 204; 145 FCR 277, 145 IR 418

 14   Respondent’s Submissions at [36]

 15   Ibid at [37]

 16   [2020] FWCFB 606

 17   Applicant’s Submissions, 21 August 2020

 18   Ibid

 19   Ibid

 20   Respondent’s Reply Submissions, 27 August 2020

 21   [2019] FWC 5821

 22   PR724030