George Tsolacis v St Vincent's Hospital (Melbourne) Limited
[2013] FWCFB 7040
•22 OCTOBER 2013
[2013] FWCFB 7040 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decisions
v
St Vincent’s Hospital (Melbourne) Limited
(C2013/5207)
DEPUTY PRESIDENT SMITH | MELBOURNE, 22 OCTOBER 2013 |
Appeal against a decision in transcript on 28 June 2013 and reasons for decision on 31 July 2013 [PR539602] of Commissioner Johns in matter number U2013/7229; contractor or employee; bias application.
Introduction
[1] This is an appeal for which permission is required. 1 It arises from a decision of Commissioner Johns who dismissed an application for an unfair dismissal remedy made by Mr George Tsolacis against St Vincent’s Hospital (Melbourne) Limited (the Hospital). The Commissioner considered an argument by the Hospital that Mr Tsolacis was not a person protected from unfair dismissal as he was an independent contractor and not an employee.2 The Commissioner concluded that Mr Tsolacis was not an employee and accordingly dismissed the application.
[2] The Commissioner gave an ex-tempore decision on the day in transcript 3 and subsequently published his reasons for decision and issued an order on 31 July 2013.4 The appeal was lodged against the decision on 19 July 2013.
Principles on appeal
[3] An appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act) may only be pursued with the permission of the Fair Work Commission (the 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 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. 5 Secondly, where an appeal is based on error of fact, the appeal can only be made on the ground that the decision involved a significant error of fact.6
Background
[4] Approximately three years ago Mr Tsolacis approached the Hospital seeking “engineering type work in the electronics, electro-mechanical field”. 7 Mr Tsolacis considered that he was very proficient in the field in which he had been working for over 30 years. Mr Tsolacis had performed repair work for the Alfred Hospital, St Vincent’s Private Hospital and Pioneer Hospital. In all cases he was not paid a wage but was paid on a per piece basis8 and prepared invoices for payment. Mr Tsolacis also performed electronic works for private individuals and, at the time of the hearing before the Commissioner, Mr Tsolacis had performed some work for an aged care facility in Greensborough.
[5] In relation to the respondent Hospital, Mr Tsolacis sought work and provided invoices for work performed. The Commissioner’s decision outlines the history of the attendances at the Hospital, the work undertaken both onsite and offsite, together with the method of payment.
[6] The Commissioner examined all of the evidence and considered that evidence against the background of the decision of the Full Bench in Jiang Shen Cia trading as French Accent v Do Rozario. 9 The Commissioner also had regard to the decisions in Hollis v Vabu Pty Ltd10 and Stevens Brodribb Sawmilling Co Pty Ltd.11 These 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.
[7] The Commissioner examined the various indicia 12 and further constructed a chart13 in which he applied those indicia in a way which balanced the competing submissions of the parties. The Commissioner concluded:
“The indicia give a good view of the relationship between the Respondent and the Applicant. In this case the balance is not a fine one. It is distinctly in one direction. Viewed as a practical matter the Commission is satisfied that the Applicant was running his own business.” 14
[8] The Commissioner found that Mr Tsolacis was not an employee and dismissed the application.
[9] When the matter first came before the Bench, Mr Tsolacis sought and was granted an adjournment to file amended appeal grounds. Permission was subsequently given to amend the grounds.
Grounds of appeal
[10] We now turn to consider each of the grounds of appeal put forward by Mr Tsolacis which he argues constitute a significant error of fact.
[11] Mr Tsolacis submits that the Commissioner’s conclusion gives inappropriate weight to the invoicing which was said to have been arranged by Mr Tsolacis at his instigation. Further, it was concluded that this was the manner in which he sought to be paid. 15 It is submitted by Mr Tsolacis that such a finding is inconsistent with the evidence.
[12] It is true that the Hospital required an invoice because of the nature of the engagement of Mr Tsolacis and it offered him specific work as a contractor. Mr Tsolacis provided those invoices and sought payment, not on an hourly basis, but on the basis of tasks performed. Indeed, we are fortified in our conclusion on this point as Mr Tsolacis, in his own evidence, charged other hospitals in a similar manner. The history of his work for other hospitals appears, from the evidence before the Commissioner, to be one where he performed work and subsequently provided an invoice. Mr Tsolacis sought to distinguish between invoices he provided to the Hospital when he considered himself a contractor and invoices when he considered himself a casual employee. 16 However, Mr Tsolacis also signed into the hospital on a number of occasions describing himself as G. T. Electronics. We discern no significant error of fact in the conclusions of the Commissioner in this regard.
[13] Mr Tsolacis argued that the evidence of Mr Rodriguez confirmed his view that no agreement was reached in relation to how the hospital would be invoiced. The Commissioner had before him the evidence of Mr Rodriguez, which was not properly characterised by Mr Tsolacis, and other evidence which he resolved. 17 We discern no significant error of fact in the resolution of that evidence. When read in context, the evidence of Mr Rodriguez was not as submitted by the applicant.
[14] Mr Tsolacis then turned his attention to the issue of control and argued that he was micro managed. The Commissioner had before him evidence from Mr Tsolacis and Mr Rodriguez about this issue and reached the conclusion that the level of control was more like a contractor than an employee. We have examined the matters drawn to our attention by Mr Tsolacis and the Hospital. 18 We have reached the conclusion that whilst the Hospital directed which work was to be undertaken, it did not exercise control over the way in which the work was performed. We discern no significant error of fact in relation to the conclusions on this aspect.
Mr Tsolacis argued that the Commissioner was in error in relation to his conclusion on the flexibility on working hours. There is no substance to this submission. Mr Tsolacis could decide whether or not to respond to a request to undertake work. He felt he was obliged to respond, but that is different from being required to attend work as an employee.
[15] Whilst Mr Tolacis challenged the Commissioner’s finding in relation to the place of work, it was an exercise in futility. The Commissioner made a neutral finding and we discern no significant error in his conclusions. The same could not be said for the outside activity of Mr Tsolacis and here the Commissioner found that it was more like a contractor. Mr Tsolacis admitted himself he was doing other work. In his written submissions he does not dispute this finding by the Commissioner. There can be no finding of significant error of fact in this regard.
[16] In relation to tools and equipment the Commissioner made a neutral finding which accords with the submission of Mr Tsolacis. The same is true of the Commissioner’s finding in relation to the right to delegate. There can be no significant error of fact on these matters.
[17] Mr Tsolacis argues that “dismissing” him for not providing an ABN number was illegal. In this regard, Mr Tsolacis bases his concern on an act of dismissal. The Hospital was entitled to have a policy of only engaging contractors who provide ABN numbers and the criticism (if one exists) falls to the ground if Mr Tsolacis is found to be a contractor.
[18] The Commissioner examined what representation was made to the outside world in relation to Mr Tsolacis and found that it was more like a contractor than an employee. Mr Tsolacis disputes this on the basis that when he travelled inside the hospital he was required to remove his Hi-Vis vest which had the word contractor on the back of it. The Commissioner relied upon Mr Tsolacis signing in as a contractor, wearing a contractor tag and a Hi-Vis vest with the word “contractor”. The weight of the evidence supports the finding by the Commissioner and we discern no significant error of fact.
[19] Mr Tsolacis argued that because the Hospital did not deduct tax it had violated taxation law. This is a submission which presumes a fact which is not proven to justify another questionable conclusion. The basis of payment was by way of invoice and not by way of salary and we find no significant error of fact by the Commissioner on this point. As to profitability and goodwill the Commissioner made neutral findings.
[20] Mr Tsolacis put forward that it was another serious error of fact not to take into account the provisions of the Superannuation Guarantee (Administration) Act 1992 (Cth)(the Superannuation Act). There is no substance to this ground. The Superannuation Act’s expansion of the definition of employee for the purpose of that legislation does not determine the employment relationship or otherwise in proceedings before the Commission.
[21] Mr Tsolacis takes issue with the Commissioner being satisfied that, viewed as a practical matter, he was running his own business. The Commissioner reached this conclusion after weighing all the indicia both for and against the proposition put forward by Mr Tsolacis. Put simply, Mr Tsolacis disagrees with the conclusion reached by the Commissioner on the various tests he applied. 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.
[22] We conclude this aspect of the appeal by finding that the Commissioner made no significant error of fact in his decision. Before concluding a further matter was raised which went to the jurisdiction of the Commission, namely an allegation of a perception or actual bias by the Commissioner. We now turn to that matter.
Bias Application
[23] Whilst not raised directly in the grounds of appeal, Mr Tsolacis made a submission that the Commissioner exhibited bias in his conduct of the matter. Mr Tsolacis referred to an occasion where he was interrupted and the Commissioner sought to correct a submission that was being made. It is important to note that no application about bias was made to the Commissioner at the time.
[24] Allegations of bias are serious matters and should not be made lightly. Moreover, if a party has concerns about bias, the issue should be raised in the first instance with the tribunal member dealing with the matter, rather than waiting to agitate the issue on appeal. Given that Mr Tsolacis represented himself, we are prepared to accept that he has little knowledge of the concept of bias. 19 It does not arise simply because a person may disagree with the decision maker. Broadly stated the substance of actual or apprehended bias is whether the parties or the public, might, in the circumstances, entertain a reasonable apprehension that the Commission might not bring an impartial or unprejudiced mind to the proceedings.
[25] The circumstances which Mr Tsolacis submits constitutes bias are a statement by the Commissioner when he interrupted a proposition being put to the witness which was inaccurate. 20 Mr Tsolacis complained that it did not allow the witness to answer the question and that constituted bias on his part. This is without foundation. A member of the Commission has a responsibility to have proceedings progress fairly. It is unfair to a witness, for a witness to be asked a question which has no factual foundation. The Commissioner was correct to interrupt the question and to draw to the attention of Mr Tsolacis the factual circumstances to ensure that the witness was not misled.
[26] The purpose of the cross-examination by Mr Tsolacis was to seek to create areas of difference between the statement and the oral evidence; however the matter was not one which could have reasonably gone to the credit of the witness.
[27] There is no substance in the submission of bias on behalf of the Commissioner and we reject it without qualification.
Conclusion
[28] We are not satisfied that the Commissioner made any significant error of fact. Further, we see no basis for deciding that the facts of this case attract the public interest. We refuse permission to appeal.
DEPUTY PRESIDENT
Appearances:
G. Tsolacis the appellant.
S. McCullough with P. Clarke on behalf of St Vincent’s Hospital (Melbourne) Limited.
Hearing details:
2013.
Melbourne:
September, 18;
October, 11.
1 Section 604(1) of the Act.
2 See s.382 of the Act.
3 Transcript PN879—885.
4 [2013] FWC 5221 and PR539600.
5 Section 400(1).
6 Section 400(2).
7 Transcript PN696.
8 See transcript PN711—714 and PN719—725.
9 [2011] FWA 3003.
10 (2001) 207 CLR 21.
11 (1986) 160 CLR 16.
12 [2013] FWC 5221 at paragraphs 27—46.
13 Ibid at paragraph 47.
14 Ibid at paragraph 49.
15 Ibid at paragraph 48.
16 See pages 95 and 96 of the appeal book where one invoice contained a guarantee for parts and labour and the other does not.
17 Rode v Burwood Mitsubishi [Dec 451/99 M Print R4471].
18 Paragraph 10 of submission filed on 9 October 2013.
19 See for example R v Commonwealth Conciliation and Arbitration Commission; Ex parte the Angliss Group (1969) 122 CLR 546 at 553-4; R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 262; Re JRL; Ex parte CRL (1986) 161 CLR 342 at 351, 359 and 369.
20 Transcript PN343—350.
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