Gibbons v Vickers - [2018] FCCA 327

FEDERAL CIRCUIT COURT OF AUSTRALIA

GIBBONS v VICKERS

[2018] FCCA 327

Catchwords:
INDUSTRIAL LAW – Application for contravention of ss.357, 535 and 536 of the Fair Work Act 2009 (Cth) – entitlement to annual leave, sick leave, public holidays, long service leave and superannuation – whether the relationship between the parties was that of employer and employee or principal and independent contractor – application dismissed.

PRACTICE & PROCEDURE – Duty of Court to draw facts revealed by evidence – referral of judgment and evidence to the Attorney-General.

Legislation:

Fair Work Act 2009 (Cth)

Cases cited:

ACE Insurance Ltd v Trifunovski (2013) 209 FCR 146; [2013] FCAFC 3

Connelly v Wells (1994) 55 IR 73
Federal Commissioner of Taxation v Barrett (1973) 129 CLR 395; [1973] HCA 49
Hollis v Vabu Pty Ltd (2001) 207 CLR 21; [2001] HCA 44
Humberstone v Northern Timber Mills (1949) 79 CLR 389; [1949] HCA 49
Petera Pty Ltd v EAJ Pty Ltd (1985) 7 FCR 375
Putland v Royans Wagga Pty Ltd [2017] FCA 910
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; [1986] HCA 1
Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561; [1955] HCA 73

Applicant:

STEPHEN GIBBONS

Respondent:

CHRISTOPHER VICKERS

File Number:

SYG 3698 of 2016

Judgment of:

Judge Smith

Hearing date:

5 & 6 February 2018

Date of Last Submission:

6 February 2018

Delivered at:

Sydney

Delivered on:

2 March 2018

REPRESENTATION

Counsel for the Applicant:

Mr B Fogarty

Solicitors for the Applicant:

RJ Thomas Solicitor

Counsel for the Respondent:

Mr B Miles

Solicitors for the Respondent:

Haywards Solicitors

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3698 of 2016

STEPHEN GIBBONS

Applicant

And

CHRISTOPHER VICKERS

Respondent

REASONS FOR JUDGMENT

The applicant, Mr Gibbons, is a bricklayer by trade. In about 2007, Mr Gibbons consulted the respondent, Dr Vickers, a specialist gastroenterologist, in connection with his health. During the consultation Dr Vickers offered Mr Gibbons some work replacing the retaining walls on a property owned by him. Mr Gibbons accepted that offer and undertook the work. Mr Gibbons did further work for Dr Vickers over the course of a number of years. He was paid for the work at an hourly rate.
In 2016 Mr Gibbons claimed, for the first time, that the relationship between himself and Dr Vickers was one of employee and employer and that, as a consequence, Dr Vickers owed him for unpaid annual leave, sick leave, public holidays, long service leave and superannuation. When those claims were unable to be resolved between the two men, Mr Gibbons commenced these proceedings seeking, amongst other things, the imposition of a civil penalty against Dr Vickers.
Mr Gibbons’ claims raise a number of factual and legal issues; however, the parties agreed that the critical question was whether Mr Gibbons was an employee of Dr Vickers. Mr Gibbons agreed that if that issue was decided against him his claim should be dismissed. For the…

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.

Continue reading Gibbons v Vickers

Details

AGLC: Gibbons v Vickers [2018] FCCA 327
Case: [2018] FCCA 327
Decision Date: 2 March 2018

CaseChat Overview and Summary

Gibbons (Applicant) brought proceedings against Vickers (Respondent) in the Federal Circuit and Family Court of Australia, alleging contraventions of sections 357, 535, and 536 of the *Fair Work Act 2009* (Cth). The dispute concerned the Applicant's entitlement to various leave entitlements and superannuation, which turned on whether the relationship between the parties was one of employment or an independent contracting arrangement.

The primary legal issue before the Court was to determine the true nature of the relationship between the Applicant and the Respondent. This determination was crucial for establishing whether the Applicant was entitled to the statutory entitlements claimed under the *Fair Work Act 2009* (Cth).

Judge Smith applied established principles for distinguishing between an employee and an independent contractor, considering factors such as the degree of control exercised by the alleged employer, the opportunity for profit or loss, the provision of tools and equipment, and the intention of the parties. After examining the evidence presented, the Court concluded that the relationship was not one of employment, but rather that of a principal and an independent contractor. Consequently, the application was dismissed. The Court also noted its duty to draw facts revealed by the evidence and referred the judgment and evidence to the Attorney-General.

Orders