GRUNBAUM v Gescheit

[2018] FCCA 138

FEDERAL CIRCUIT COURT OF AUSTRALIA

GRUNBAUM v GESCHEIT [2018] FCCA 138

Catchwords:
INDUSTRIAL LAW – Small claim – fees claimed for physiotherapist services – independent contractor – not an employee – no valid basis for applicant’s claim – application dismissed.

Legislation:

Fair Work Act 2009 (Cth)

Health Professionals and Support Services Award 2010

Applicant: ILONA GRUNBAUM

Respondent: ADAM GESCHEIT T/A BODY MOVES

File Number: MLG 1775 of 2017

Judgment of: Judge Wilson

Hearing date: 15 December 2017

Date of Last Submission: 15 December 2017

Delivered at: Melbourne

Delivered on: 25 January 2018

REPRESENTATION

Applicant in person

A Gescheit for Body Moves

ORDERS

The application filed on August 2017 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1775 of 2017

ILONA GRUNBAUM

Applicant

And

ADAM GESCHEIT T/A BODY MOVES

Respondent

REASONS FOR JUDGMENT

Introduction

1. By application filed 15 August 2017, the applicant sought recovery from the respondent of the sum of $17,574.96 made up of $15,774.96 in unpaid annual leave along with the amount of $1800.00 as a payment in lieu of notice.

2. The respondent denied that he was liable to pay any amount of the sum claimed.

3. In essence, the applicant asserted that she was employed by the business owned by the respondent and that upon cessation of work with the respondent, the respondent owed the applicant the amount she claimed.

4. This was a “small claim” in the fair work jurisdiction of this court. Despite the relatively modest sum involved, the question raised by this case was intriguing and called for a short time’s consideration.

Synopsis

1. For the reasons that follow, I was not persuaded on the balance of probabilities that the respondent owed the applicant any amount.

Short factual narration

1. This proceeding was first heard by me on 19 October 2017. As is the norm in a small claim, neither party was represented. When the applicant gave evidence on the first day, it became apparent that she was unable to substantiate the factual basis for her claim and the arithmetic that underpinned her claim as being the amount she sought. I gave her the opportunity to file an affidavit containing the factual matters she wished to agitate as well as her breakdown of the monetary component of her claim.

2. On 20 November 2017, the applicant filed an affidavit that she said represented the factual matters that she wished to agitate in this case. To that affidavit she exhibited a large body of documents, some redacted, others in minute tabular form. Her affidavit did not set out the factual basis of her claims or the quantum of her claim in very much greater detail than was the state of her evidence by the end of the first day of the hearing on 19 October 2017.

3. With a view to understanding her case, I questioned the applicant while she was in the witness box on the resumed hearing of this proceeding on 15 December 2017.

4. She brought this proceeding for recovery of sums due under the Health Professionals and Support Services Award 2010. The applicant did not produce the award nor exhibit it to her affidavit.

5. Being the applicant in this case, it fell to her to prove an entitlement to the amount that she sought, on the grounds that she sought and on the balance of probabilities.

6. In essence, she said that she was a qualified physiotherapist and that she commenced working with the respondent in 2009. She said the persons for whom she provided physiotherapy services were clients of the respondent and that she did not have her own clients while she worked with the respondent. She said persons in need of physiotherapy were allocated to her and she performed such work in accordance with that allocation.

7. I invited her attention to her first discussions with the respondent. I did that with a view to obtaining a better understanding of the contractual elements of her claim. It was relevant for me to know whether a contract of employment existed between the applicant and the respondent or whether some arrangement for the sharing of clients and the provision of a place of work was the more likely characterisation of their business relationship.

8. The applicant told me that during their first discussions, she and the respondent did not discuss annual leave entitlements when they first discussed their business relationship. She did not discuss holiday pay with the respondent. She said she did not discuss the degree of control that the respondent would exercise over her or the frequency of payments for services performed. She said she obtained an Australian business number for taxation purposes although she said she did that some time into their working relationship.

9. Upon probing for answers to questions that ordinarily pointed to the existence of a contract of employment, I was unable to find the usual indicators.

10. Upon probing for answers to questions that might have pointed to the existence of a contract for services, likewise, the applicant’s answers were bereft of detail.

11. By the time the applicant had finished giving her evidence, it was well within the bounds of possibility that I could have dismissed her application even without hearing from the respondent on the basis that she failed to prove her case.

12. When it came to the arithmetical calculation of her claim, the applicant told me that she examined diaries between 2009 and 2017 to ascertain bookings or engagements on which she was actively involved over that period. She said she examined corresponding bank statements to ascertain whether funds had been paid into her account in amounts that corresponded to the activities that matched the bookings that the diary entries revealed she had undertaken.

13. She then multiplied the total number of hours that the diary entries revealed she had worked by a particular rate to represent the amount that she said she should have been paid for the work that the diaries revealed she had in fact undertaken.

14. The applicant did not identify the way in which the award applied in this case.

15. The respondent filed and relied upon his affidavit sworn on 29 September 2017. The following matters emerged from his affidavit –

    a)he was a qualified physiotherapist and the proprietor of the business “Body Moves” that operated from an address in Hawthorn Road North Caulfield;

    b)since commencing the business in 2001, the respondent engaged qualified physiotherapists, remedial massage therapists and others as what he described was independent contractors under contracts of service to administer physiotherapy, clinical pilates, remedial massage and yoga services to clients;

    c)persons who provided those services to the respondent’s business were paid an agreed percentage of the billing fee available for the relevant service;

    d)

    in 2009 the respondent and the applicant discussed an arrangement by which the applicant would provide physiotherapy services to the respondent at its address in Hawthorn Road

    
    

    North Caulfield;

    e)the respondent offered and the applicant accepted payment to her of 50% of the billing fee in respect of each sessional service provided to a client;

    f)where the actual billing for the particular service was less than $40.00, the respondent in the early years paid the applicant the full $40.00 fee;

    g)after the initial period and when the applicant became established, she was paid 50% of the billing fee.

16. The respondent was emphatic that he did not offer the applicant employment pursuant to a contract of employment. He said she was independent and operated in an independent manner but she was a qualified physiotherapist and operated under the Australian Physiotherapy Board’s code of conduct. He said she had an individual provider number issued by the Health Insurance Commission. He said clients were hers to treat and manage. He said she was fully responsible for the professional standards and outcome of her services. He did not supervise the applicant in any of her activities. The respondent said he regarded the applicant as an “autonomous clinician”.

17. A dispute arose between the applicant and the respondent in

    
    

    March 2017. Ultimately, the applicant and the respondent fell out and she ceased to provide physiotherapy services at the respondent’s premises.

18. The respondent contended that he did not owe the applicant any of the amounts that she claimed as she had been paid in full for all her entitlements. He refuted her contentions that she was an employee entitled to the amounts that she sought.

19. In this case, it fell to the applicant to demonstrate her claims. She failed to do so.

20. In any event, it seemed to me to be more likely that the version of events as given by the respondent was correct. After all, on critical issues that were pivotal to a determination about the existence of a contract of employment, the applicant failed to adduce any evidence. Conversely, the respondent adduced evidence that was cogent, sensible, logical, supported by contemporaneous documents and had the hallmarks of commercial reality.

21. It seemed to me to be highly unlikely that the subject of holiday entitlements, leave entitlements, time off, time in lieu, and other issues traditionally characteristic of a contract of employment did not emerge in any shape or form under an arrangement that, on the applicant’s version of events, first commenced in 2009 and ran for eight subsequent years. To my mind, that pointed to the likelihood that the respondent’s version of events was correct and that the applicant knew as much.

22. I reject the applicant’s contentions in this case and dismiss this proceeding.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Associate: 

Date:  25 January 2018