Evan Campbell v HDND Enterprise Pty Ltd
[2024] FWC 2440
•6 SEPTEMBER 2024
| [2024] FWC 2440 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Evan Campbell
v
HDND Enterprise Pty Ltd
(C2024/3258)
| COMMISSIONER YILMAZ | MELBOURNE, 6 SEPTEMBER 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objections – Whether employee and whether dismissed – objections upheld.
This decision concerns an application made by Mr Evan Campbell (the Applicant) regarding general protections involving dismissal pursuant to s.365 of the Fair Work Act (the Act) in relation to his engagement with HDND Enterprise Pty Ltd T/A Fitness First (the Respondent).
The Respondent objects to the application submitting that Mr Campbell was not an employee and not dismissed. The Respondent tendered an independent contractor and licence agreement which I observe was not executed by the Applicant, however, during the hearing it was confirmed that such a document was signed by him. The Applicant submits he did not at any time receive a copy of this signed contractor licence agreement. The Respondent submits that the Applicant was not hired as an employee and the business agreement between the Respondent and the Applicant’s business was terminated.
The Respondent contends that the Applicant commenced his business arrangement with Anytime Fitness Sandy Bay on Monday 11 March 2024, and it was terminated on 13 May 2024. While delivering services to two clients, the Respondent submits that several issues of concern arose for the Respondent’s staff and members. It is submitted that in accordance with the contract the Respondent advised of a termination of the business relationship effective immediately due to breach of contract. It is submitted in response the Applicant requested a notice period to finalise pre-paid sessions with two clients. The Respondent submits it offered a four-week period which the Applicant rejected as he did not wish to pay rent to the Respondent as provided in the contract.
The Respondent submits that the Applicant was in breach of his contract for failing to pay rent as agreed and it contends that Mr Campbell engaged in an argument with a club member on social media which was damaging to the Respondent.
The Applicant contests the facts as presented by the Respondent. The Applicant contends the termination of his engagement occurred after he posted on social media a response, which he describes as a defence to his business reputation after a member of the Respondent posted comments on social media. He submits that he has suffered financial loss due to the cancellation of his six-month contract and his reputation was damaged by the actions of the Respondent when it terminated his contract in the way it did.
The Applicant further objects among other matters to the use of his image in promotional material disseminated by the Respondent and its related or affiliated entities on the basis that it represents his involvement with the Respondent, the image is being used without permission and suggests he is or was an employee.
The Applicant submits that the Respondent breached his workplace rights pursuant to sections 340, 341 and 343 of the general protections provisions of the Act. In particular the Applicant alleges that the Respondent defamed his character and professionalism. The Applicant submits that he was informed by the Commission to lodge this general protections application and seeks justice. However, it is not apparent whether the Applicant understood to lodge a general protections application involving dismissal pursuant to s.365 of the Act or general protections pursuant to s.372. Further no evidence of this alleged advice was presented.
In any event and despite the Applicant confirming that he was a contractor he insisted on pursuing this application. Therefore, this decision deals with the jurisdictional question of whether the Applicant was dismissed which firstly requires determining whether the Applicant was an employee or contractor.
A hearing was scheduled for 6 September 2024 for the jurisdictional objections. Both parties were self-represented.
Was the Applicant dismissed?
The Applicant did not file and serve written submissions, instead submitted a range of documents on which he relies. Among the material filed, there was customer information (which is alleged to be leads to chase clients), personal information regarding the Applicant’s clients, information on a club member that allegedly purports to be a personal trainer which the Applicant complained about to the Respondent and text messages with a client, all of which is irrelevant to the question whether the Applicant was an employee and dismissed.
In an email from the Applicant to the Commission dated 15 July 2024, he includes extracts of alleged statements from the Respondent to his clients which he submits are evidence of defamation. The relevant extracts are the following:
“1.) "Unfortunately, we will not be able to facilitate the remainder of your paid sessions/program with Evan due to his breach of employment contract" (14/05/2024) - I never breached my contract. This is a blatant lie and pure defamation of my character and professionalism.
2.) "Regarding any prepaid sum with Evan, it is solely up to him to process this refund for his services; please let us know if you have any issue with him fulfilling this" (13/05/2024) - what right does Anytime Fitness have to imply to one of my clients that I must refund them (when I am a sole trader with my own ABN) and that if I do not then I am in effect doing something wrong that they can then penalise me for? Anytime Fitness should not have the right to tell me what my refund policies are and they should not terminate my contract when I refuse a refund to a client who is aware of the no refund policy and therefore is not entitled to a refund. In this case, there is no way for Anytime Fitness to know what my refund policy was and they never asked me. Moreover, the no refund policy was clearly visible to my clients when they first consulted me (please see both attached) and then paid for my services up front. Anytime Fitness also does not know what the multiple remedies I offered were nor did they give me the chance to defend myself and present the remedies and no refund policy.
3.) "I apologize for any confusion that may have arisen from the miscommunication between yourself and several of my colleagues. Unfortunately, it is indeed accurate that Evan has chosen not to complete his notice period. Regrettably, under these circumstances, Evan will not be returning as an employee to Anytime Fitness Sandy Bay to complete your sessions" (28/05/2024) - this again is defamation of my character and professionalism and creates the impression that I chose to run off with my clients money. What it fails to mention is that I actively sought to extend my contract for four weeks for my clients after I had it terminated without notice, and it fails to note that I was going to be charged at the full rental rate for each of those weeks which meant that I would lose a significant amount of money on top of losing all my clients and my career in personal training - I would also not be allowed to take on any further clients thus making it impossible to generate revenue in this time. It also fails to mention that they would not even offer this to me without the fee or, at the very least, the half rental fee that I had not even started but was contractually obligated to me.
4.) "I understand the frustration you must be feeling with the unexpected departure of our Personal Trainer, Evan. I'd like to clarify the situation. Despite offering Evan a four-week leave notice to ensure a smooth transition for his clients, he chose to depart without fulfilling this obligation. This decision has understandably caused inconvenience for you and our other member" (27/05/2024) - once more, and the same as mentioned above, this is defamation of my character and professionalism and creates the impression that I chose to run off with my clients money.”
These responses from the Applicant assert that he operates as a sole trader with his own ABN and controls the relationship with his clients. He objects to the Respondent making statements to his clients regarding his refund policies or his contract with the Respondent. At no time does the Applicant contend that he was employed by the Respondent. However, it is noted that the Respondent is blase about the use of the term employee and contractor when referring to the Applicant.
Among the many text messages evidence shows that the Applicant received payment for his services directly from his clients. On this basis there is no evidence of payment from the Respondent to the Applicant. Further during the hearing the parties confirmed no wages or payments were made from the Respondent to the Applicant for services rendered.
In addition, during the hearing the Applicant confirmed that he held his own public liability and professional indemnity insurances, consistent with the agreement entered into between the parties. The business relationship consisted of a license to delivering services to clients that were members of the gym and he was subject to payment of rent to utilse the gym (even though during the course of the engagement no rent payment was made by agreement). I observe that according to the Agreement the Applicant may wear the gym uniform and cobrand with his own business. The relevant extract from the Agreement follows:
“9. License
9.1 The Company grants the Contractor, for the duration of this Agreement, a non-exclusive license (License) to use the Location and Facilities for the purpose of the Contractor operating its own personal training business from the facility subject to the Contractor:
(a) giving Members preferential use of all equipment and facilities;
(b) not disrupting Members’ quiet use and enjoyment of the establishment;
(c) only using the Location and Facility for the purpose of providing Personal Training Services; and
(d) remaining at all times suitably insured, as required by this Agreement.”
The Respondent provides no material in support of their jurisdictional objection other than rely on their form F8A, a complaint from another client of the Applicant and the unsigned independent contractor and licensing agreement.
During the hearing the Applicant reiterated his grievances against the Respondent and the impact of their actions on his reputation and wellbeing and the Respondent made no submissions and were dismissive of the Applicant’s grievances.
Consideration and decision
Subdivision A of Part 3.1- general protections deals with contraventions involving dismissal. Section 365 concerns an application for the Commission to deal with a dismissal dispute. Relevantly the provision provides:
“Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
Section 365 requires that the person that alleges the dismissal is a contravention of the Act must be “dismissed”. The Act further defines dismissed. The relevant provision is s.386:
“Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
Section 365 requires that should an application be made, it must be by a person that is dismissed and the person alleges the dismissal is in contravention of the Act.
To make a general protections dismissal application the person must have been dismissed as defined by s.386 of the Act. Before exercising its powers under s.368[1] of the Act, the Commission must be satisfied that the person was dismissed in fact.[2] To be dismissed by the Respondent, the Applicant must be an employee capable of being dismissed and not an independent contractor of the Respondent.
The relevant provision in this matter is the application of sub section 386 (1) of the Act. There is no dispute that the exclusions in sub sections 386 (2) and (3) do not apply. Both subsections of s.386 (1) relate to the employment coming to an end at the employer’s initiative.
The legal principles of whether a person is an employee or independent contractor was considered by the High Court in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd[3](‘Personnel Contracting’) and ZG Operations Australia Pty Ltd v Jamsek[4] (‘Jamsek’). Where the rights and duties of the persons (independent contractor and principal) are exclusively in a written contract and the terms are not challenged as a sham or varied, the contract is to be the decisive factor.[5] The central premise is the obligations of the parties under the contract at the time the contract was entered into, and not how the relationship has “come to play out in practice but bearing no necessary connection to the contractual obligations of the parties.”[6] Established principles of contractual interpretation are important[7] and consideration of subsequent conduct is for the purpose of assessing legal rights and obligations.[8] The High Court further made observations of the judgement in Stevens v Brodribb Sawmilling Co Pty Ltd (Stevens),[9] where Kiefel CJ, Keane and Edelman JJ noted that the totality of the relationship must be considered and that the right of one party to control another was not ‘the only relevant factor’[10], but it also was not an invitation to broaden the inquiry beyond contractual rights and duties.[11] It is noted that the High Court in Stevens, the relationship was not confirmed in writing.[12]
In this case the parties submit that the rights and obligations were reduced to writing prior to commencement of the relationship. Further other than the legal rights and obligations in their agreement, there were no obligations or rights indicative of an employment relationship.
Having assessed the materials submitted by the parties, the Applicant was not an employee but rather a contractor to provide services to clients direct that are members of the Respondent’s club. There is no evidence to conclude a direct employment relationship between the parties in this matter, there are no payments/wages or other employment benefits from the Respondent to the Applicant.
This dispute concerns a contractor and a company in relation to their contractual obligations. On this basis the jurisdictional objection is upheld, and the application is to be dismissed for the reason that the application is not made in accordance with the Act.
Conclusion and Order
On the matter of the jurisdictional objection the application must be dismissed. I do not find that the Applicant was capable of being “dismissed” as there was no employee and employer relationship with the Respondent. As there was no direct employment relationship the s.365 application cannot succeed as the application was not made in accordance with the Act.
Accordingly, pursuant to s.587(1)(a) the matter is dismissed.
COMMISSIONER
Appearances:
E Campbell, Applicant.
J Kenworthy and R Leeson-Smith for the Respondent.
Hearing details:
2024.
Melbourne (via Microsoft Teams):
September 6.
[1] Dealing with a dismissal dispute other than by arbitration.
[2] Coles Supply Chain Pty Ltd v Milford (2020) 279 FCR 591, 54.
[3] [2022] HCA 1.
[4] [2022] HCA 2.
[5] Personnel Contracting, [43].
[6] Ibid, [61] and [174].
[7] Ibid, [60].
[8] Ibid, [52] – [55].
[9] (1986) 160 CLR 16.
[10] Ibid, 20.
[11] Personnel Contracting, [56].
[12] Ibid.
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