John Young v Sutherland Shire Realty Pty Ltd

[2020] FWC 701

[2020] FWC 701

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Young
v
Sutherland Shire Realty Pty Ltd
(U2019/2407)

DEPUTY PRESIDENT BOYCE SYDNEY, 30 MARCH 2020

Application for an unfair dismissal remedy — real estate industry — jurisdictional objection — whether relationship between parties is that of principal and contractor or employer and employee — where applicant was a director of a corporate entity with an ABN — where applicant was paid on invoices issued by his corporate entity — where applicant claimed GST and obtained GST credits — where applicant filed taxation returns and claimed business expense deductions of more than 50 percent of income — where applicant declared that he was not an employee in taxation returns — legal indicia weighed to determine whether applicant an independent contractor — jurisdictional objection upheld — application dismissed

Introduction

[1] On 4 March 2019, Mr John Young (Applicant) lodged an application for unfair dismissal with the Fair Work Commission (Commission). The Applicant alleges that he was unfairly dismissed from his employment with Sutherland Shire Realty Pty Ltd (Respondent) on 18 February 2019.

[2] On 18 March 2019, the Respondent lodged a response to the Applicant’s claim, in which the Respondent denied that the Applicant was unfairly dismissed. The substance of that denial was a jurisdictional objection, being that the relationship between the Respondent and the Applicant was that of principal and independent contractor. In other words, the Respondent asserts that the Applicant was not an employee of the Respondent, and is therefore not a person protected from unfair dismissal under Part 3-2 of the Fair Work Act 2009 (Act). 1

[3] On 4 October 2019, I held a hearing in Sydney regarding the Respondent’s jurisdictional objection. In attendance were Mr Kenneth Yardy (Solicitor, Yardy Legal), who appeared with permission for the Applicant, and Mr Dean Groundwater (Solicitor, WMD Law) who appeared with permission for the Respondent.

[4] Having considered the submissions of the parties, and the evidence provided prior to and during the hearing, I have determined to dismiss the application on the basis that the Applicant was not an employee of the Respondent. My reasons for this decision follow.

Permission to appear

[5] Both the Applicant and the Respondent sought to be legally represented at the hearing. Neither party opposed the other being legally represented. I granted the parties permission to be legally represented generally in this matter. I did so having had regard to the criteria set out in s.596 of the Act, specifically noting that this matter pertains to a jurisdictional objection (which is, by its nature, inherently complex). 2

Relevant law

[6] Section 382 of the Act qualifies what persons are protected from an unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold”.

[7] In the recent decision of Howard v Merdaval Pty Ltd, 3 O’Callaghan J neatly summarised the authorities on determining whether the relationship between two persons is that of an employee/employer or principal/contractor:4

“There is no single test to apply to determine whether a relationship is one of employment. Formerly, the law looked to the question of “control”. Nowadays, a so-called “multi-factorial” approach is to be adopted, requiring an assessment of the totality of the relationship. As Mason J said in Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; (1986) 160 CLR 16, at 29 (approved by the majority in Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21 at 41, [44]):

‘[T]he common law has been sufficiently flexible to adapt to changing social conditions by shifting the emphasis in the control test from the actual exercise of control to the right to exercise it, ‘so far as there is scope for it’, even if it be ‘only in incidental or collateral matters’: Zuijs v Wirth Brothers Pty Ltd [(1955) 93 CLR 571]. Furthermore, control is not now regarded as the only relevant factor. Rather it is the totality of the relationship between the parties which must be considered’.

The “modern approach” and the difficulties associated with it were explained by Wilson and Dawson JJ in Stevens v Brodribb at 35, as follows:

‘The classic test for determining whether the relationship of master and servant exists has been one of control, the answer depending upon whether the engagement subjects the person engaged to the command of the person engaging him, not only as to what he shall do in the course of his employment but as to how he shall do it ... The modern approach is, however, to have regard to a variety of criteria. This approach is not without its difficulties because not all of the accepted criteria provide a relevant test in all circumstances and none is conclusive. Moreover, the relationship itself remains largely undefined as a legal concept except in terms of the various criteria, the relevance of which may vary according to the circumstances. Thus when Windeyer J in Marshall v. Whittaker’s Building Supply Co. [[1963] HCA 26; [1963] HCA 26; (1963) 109 CLR 210 at 217] said that the distinction between a servant and an independent contractor “is rooted fundamentally in the difference between a person who serves his employer in his, the employer’s, business, and a person who carries on a trade or business of his own”, he was really posing the ultimate question in a different way rather than offering a definition which could be applied for the purpose of providing an answer’.

(Citation omitted)

Of this passage, the majority in Hollis v Vabu said (at 41, [45]):

‘So it is that, in the present case, guidance for the outcome is provided by various matters which are expressive of the fundamental concerns underlying the doctrine of vicarious liability. These include, but are not confined to, what now is considered “control’.

In ACE Insurance Ltd v Trifunovski [2013] FCAFC 3; (2013) 209 FCR 146 at 173, [103], Buchanan J, having reviewed the relevant authorities, said that a right of control “... remains an important consideration in many cases. It may be found in a right of organisation and allocation of work, as much as in some theoretical right to say how actual work should be done”.

In assessing the “totality of the relationship”, both the terms of the contract between the parties and the work practices imposed by the putative employer are relevant. See Hollis v Vabu at 33, [24]. Neither is dispositive. As Wilson and Dawson JJ said in Stevens v Brodribb at 36-37:

‘The other indicia of the nature of the relationship have been variously stated and have been added to from time to time. Those suggesting a contract of service rather than a contract for services include the right to have a particular person do the work, the right to suspend or dismiss the person engaged, the right to the exclusive services of the person engaged and the right to dictate the place of work, hours of work and the like. Those which indicate a contract for services include work involving a profession, trade or distinct calling on the part of the person engaged, the provision by him of his own place of work or of his own equipment, the creation by him of goodwill or saleable assets in the course of his work, the payment by him from his remuneration of business expenses of any significant proportion and the payment to him of remuneration without deduction for income tax. None of these leads to any necessary inference, however, and the actual terms and terminology of the contract will always be of considerable importance’”.

[8] I adopt and apply the foregoing law in this decision, as well as the principles of law set out by Justice Flick in Moffet v Dental Corporation Pty Ltd. 5

The initial engagement of the Applicant

[9] The Applicant asserts that he was “employed” as an Associate Real Estate Agent by the Respondent at its Pulse Property Real Estate business (located in Miranda, New South Wales).

[10] Mr Colin Stone (Director and sole shareholder of the Respondent), asserts that the Applicant was offered an engagement with the Respondent conditional upon it being an independent contractor relationship.

[11] Mr Stone’s evidence is that the Applicant agreed to his engagement as an independent contractor with the Respondent because such engagement suited the Applicant’s circumstances at the time (i.e. the Applicant had not worked for around 13 years whilst on worker’s compensation, was desperate to re-enter the workforce, and was keen to get a foothold in a long-term career in the real estate industry, albeit remaining (at that time) in receipt of worker’s compensation payments (which would top-up any other income earned), and being on restricted hours of 20 per week (for medical reasons associated with the Applicant’s long-term worker’s compensation claim)). I accept this evidence of Mr Stone. The Applicant’s evidence on these issues did not depart in any substantive sense from the evidence of Mr Stone in this regard.

[12] There can be no suggestion that there has not been some form of agreement between the parties as to their contractual relationship, albeit an agreement that has not been made with precision, or otherwise formally documented.

[13] There was much conjecture between the Applicant and Mr Stone, both in their witness statements, and during cross-examination, as to the discussions that occurred in relation to the engagement of the Applicant. The substantial inconsistencies between these two verbal accounts, and the lack of any corroborating evidence supporting what was asserted to have been said, has led me to conclude that I cannot be satisfied that either of these two accounts reflects any true recollection of what was actually discussed and ultimately agreed. Indeed, my impression of the Applicant and Mr Stone in the witness box was that they were both overly keen to push their own case theories when giving evidence.

[14] In making my findings in this matter, I have determined it most appropriate to rely mainly upon the objective (and highly probative) documentary evidence tendered by the parties. I note that this is considered the most appropriate approach in commercial cases where factual disputes arise as to the terms of a contract. As Lee J stated in Cardtronics Australasia Pty Ltd v FX Investments Australia Pty Ltd: 6

“… Usually in determining contested factual issues in a commercial case, what matters most is “the proper construction of such contemporaneous notes and documents as may exist, and the probabilities that can be derived from those notes and any other objective facts”: Mealey v Power [2015] NSWSC 1678 at [4]. As Leggatt J said in Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) at [22]:

‘... the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts’”. 7

[15] Although I am not strictly dealing with the resolution of a commercial case, I do not consider there to be any basis upon which I would not apply the foregoing principles in this matter.

Uncontested evidence

[16] The following evidence is not contested or undisputed:

(a) the Applicant’s relationship with the Respondent occurred through the Applicant’s company, JMK Young Pty Limited (incorporated on 19 August 2008) (JMK);

(b) the Applicant is sole director and shareholder of JMK;

(c) JMK traded under its registered business name “Complete Property Agents”;

(d) JMK was granted a real estate corporation license (by the NSW Department of Fair Trading) on 16 May 2016;

(e) JMK obtained its own worker’s compensation insurance, and business liability insurance, on 20 May 2016. The insurance policies were maintained by the Applicant throughout his relationship with the Respondent. There is no evidence that the Applicant ever objected to obtaining or maintaining these insurance policies;

(f) the Applicant (through JMK) commenced providing services to the Respondent on 25 May 2016 (i.e. after (d) and (e) above had occurred);

(g) JMK had an ABN, was registered for GST, and claimed GST credits for GST amounts it paid on expenses arising in the course of its business operations;

(h) Mr Stone instructed the Respondent’s lawyers to draft an independent contractor agreement (ICA) between the Respondent and JMK. The ICA was emailed by the Respondent’s lawyers to Mr Stone on 21 June 2016. In that email, the Respondent’s lawyer states, “I have been working on the contractor agreement. I understand from your email below you were to send me the ABN and address of JMK Young Pty Ltd”. Mr Stone forwarded this email to the Applicant on 21 June 2016;

(i) the Applicant responded to the foregoing email the same evening (21 June 2016) providing the ABN number for JMK, the registered address for JMK, confirmed that he was the sole director of JMK, and provided the bank account number and branch for the bank account in the name of JMK;

(j) Mr Stone provided the Applicant with a first draft of the ICA for his consideration and execution. However, the Applicant subsequently advised Mr Stone, “[t]he Sub-contractor Agreement [ICA] is biased and one-sided. I am not going to sign it”. There was no objection at the time by the Applicant that the ICA did not reflect the (agreed) proposed form of engagement between the parties;

(k) further drafts of the ICA were traded between Mr Stone and the Applicant. Ultimately, no written ICA was executed or otherwise entered into;

(l) despite the foregoing, it appears to be uncontested that “Schedule 3 – Payment for Work Performed & Payment Method” of the ICA was adopted by the parties in terms of their financial relationship. In this regard, during the period of the relationship between the Applicant (through JMK) and the Respondent, the Respondent paid various invoices issued to it by JMK (totalling the amount of $190,145.25). The invoices issued by JMK to the Respondent were titled “Tax Invoice”, listed the ABN number for JMK, listed the registered address for JMK, and contained an amount stated to be Commission, less an amount stated to be expenses (e.g. “marketing expenses”), plus an amount stated to be GST, and finally identified a total gross amount payable by the Respondent to JMK (i.e. absent any deduction for income taxation). Such amounts were payable into the bank account in the name of JMK. “Settlement breakdown” statements or documents related to the relevant JMK Tax Invoice (for an applicable property sale transaction) identify a percentage split of total commission payable by a particular vendor/s (as between the Respondent and JMK), less a split of deductions (as between the Respondent and JMK) of marketing and other expenses, plus GST; and

(m) on 1 September 2017, Mr Stone wrote to the Applicant concerning the commission structure arrangements between “Sutherland Shire Reality [the Respondent] and Complete Real Estate [the registered business name of JMK]”. Mr Stone proposed to increase the percentages of commission payable to JMK (i.e. in terms of the percentage Commission split between JMK and the Respondent) based upon revised “listing” arrangements. It appears uncontested that the Respondent and the Applicant (on behalf of JMK) agreed to the new commission structure and related arrangements. There was no objection at this time by the Applicant, to the Respondent, that he ought to be classified as an employee of, and not an independent contractor to, the Respondent. Significantly, apart from the change to commission structure and related arrangements, there is no evidence that either Mr Stone, or the Applicant, sought to change the on-going nature and structure of their relationship (that had already been in place for just under one year and six months).

[17] Although different minds may draw a different conclusion from the facts presented, 8 my finding on these uncontested facts is that the “totality” of the relationship,9 or the “reality of the situation”,10 was that the Applicant (through JMK) was retained by the Respondent as an independent contractor, and that the Applicant’s conduct reflected his agreement to this form of engagement. Indeed, as elaborated upon further below, many of the submissions and contentions of the Applicant are simply not borne out by the evidence.

Taxation Returns

[18] The Respondent tendered Trust taxation returns (Returns) for the “Young Family Trust” (Trust). 11 The Applicant is the sole Trustee for that Trust. Business income and expenses in respect of the Trust are listed in the Returns as deriving from the business of JMK. For FY18, the main business activity of JMK is stated in the Return to be “Real Estate Services”.

[19] The Applicant made no objection to the tender of these Returns, nor did he suggest or otherwise assert that these Returns were not the Returns he lodged with the Australian Taxation Office.

[20] The Returns contain a declaration to be signed by the Trustee stating:

“Declaration

I declare that the information on this tax return, including any attached schedules and additional documentation is true and correct”.

[21] This foregoing Return declaration is preceded by the following words:

“Important

Before making this declaration check to ensure that all income has been disclosed and the tax return, all attached schedules and any additional documents are true and correct in every detail. If you are in doubt about any aspect of the tax return, place all the facts before the ATO. The income tax law imposes heavy penalties for false and misleading statements in tax returns”.

[22] The Returns also contain a declaration to be signed by the relevant tax agent who prepared it, stating:

“Tax Agent’s Declaration

I declare that this tax return has been prepared in accordance with information supplied by the taxpayer [trustee], that the taxpayer [trustee] has given me a declaration stating that the information provided to me is true and correct and that the taxpayer [trustee] has authorised me to lodge the tax return”.

[23] Significantly, within the Returns, the Trustee (the Applicant) declares:

(a) the amount of the Trust’s overall assets, and current liabilities;

(b) that no taxation is payable by the Trustee (personally);

(c) that all business income to the Trust has been derived from JMK;

(d) that the expenses of JMK, to be deducted from JMK’s business income, result in a reduction of annual taxable income (on the Trust income) of over 50 percent;

(e) JMK’s expenses include rent, depreciation, motor vehicle costs, repairs and maintenance, and “other” unidentified expenses. Additionally, in the 2018 Return, an expenses amount of almost $10,000 is claimed as “salary and wage expenses” (presumably being salary and wages expenses for a person other than the Applicant, but engaged by the Applicant in the business operations being conducted by JMK, or in the alternative, being salary or wages paid by the JMK business to the Applicant (in his capacity as an employee of JMK));

(f) that total and net capital losses are to be carried forward post 2017;

(g) that capital losses (in 2017) are claimed against a capital gain in the 2018 Return; and

(h) that the Trust received only business income, i.e. no personal income (relating to salary or wages) from an individual (i.e. from the Trustee, or another individual).

[24] Having regard to the contents of the Returns, it is extremely difficult for me to accept without grave reservation, the submissions advanced by the Applicant that he was not undertaking or otherwise conducting his own business (being a business providing services to the Respondent).

Other evidence

[25] The Applicant’s evidence contradicts that declared by him as “true and correct” in the Returns. In this regard, the Applicant gives evidence that he:

(a) “did not have business premises”, 12 yet in the Returns he claims expenses for “rent” as against business income from JMK; and

(b) “did not represent himself as a corporation or independent contractor to any person either within the company or outside”, 13 yet he represents otherwise (to the Australian Taxation Office) in the Returns (especially having regard to the manner in which income is declared, and expenses are claimed).

[26] In his evidence, the Applicant identifies a number of matters, in terms of the work performed by him for the Respondent, that he asserts point to him being an employee, and not an independent contractor. 14 In short, the Applicant says:

(a) he worked for the Respondent like any other real estate “commission only” employee would work for the Respondent;

(b) he was effectively seen as representing the Respondent’s “brand” publicly;

(c) the Respondent provided him with office related services (and he provided no such services for JMK);

(d) he held himself out publicly as an “agent” of the Respondent;

(e) he had no database of clients of his own; and

(f) he attended various business and strategy meetings with staff of the Respondent (at the Respondent’s office).

[27] In any principal/contractor relationship, or employer/employee relationship, there will always be cross-overs and consistencies that can arguably be said to be attributable to one or both of those relationships. Having considered the foregoing in terms of the legal indicia to be applied, I consider them to be neutral considerations in this matter. In this regard, I do not consider any of these matters, individually or combined, to decisively resolve the nature of the relationship between the parties in the facts and circumstances of this case.

[28] Rather than saying that he could not work for anyone else during the time that he was engaged with the Respondent, or that he could not delegate his work, the Applicant says he did not work for anyone else, and did not delegate any of his work. However, there is no evidence that the Applicant was prohibited from working for anyone else whilst engaged with the Respondent, or that he could not delegate aspects of his work if he so chose to do so. The fact that he did not do either of these things was a matter for the Applicant. His choice in this regard is not one that he can now rely upon to tick off legal indicia in favour of his assertion that he was an employee of the Respondent. For my part, I weigh that fact that there is no evidence that the Applicant could not work for anyone else, or could not delegate aspects of his work to others, in favour of a principal/contractor relationship existing.

[29] Mr Stone’s evidence, which I accept, is that the Applicant could essentially work whatever hours he (the Applicant) chose to work. Further, there is no evidence that Mr Stone set daily or weekly tasks for the Applicant to perform. From Mr Stone’s perspective, he engaged the services of the Applicant (through JMK) to generate leads and secure sales (from which commission payments were to be relevantly distributed between both the Respondent and JMK). Mr Stone did not care how, when or where such work was done, as long as it got the results. The answers to questions put to the Applicant during cross-examination were also consistent with Mr Stone’s evidence on these issues. 15 I find that there can be no genuine suggestion that the Respondent (through Mr Stone) controlled or exercised control over the manner in which the Applicant performed his work, or the times at which the Applicant was required to perform such work.

[30] Although the Applicant places significant emphasis on the fact that he did not sign or otherwise expressly enter into a written independent contractor agreement (so as to make good his assertion that he never agreed, or intended to agree, to be an independent contractor), the totality of his conduct (especially in terms of his financial arrangements with the Respondent) identifies that he never sought to engage with the Respondent other than as an independent contractor. Indeed, in terms of the Returns he has lodged with the Australian Taxation Office, he has obtained significant taxation benefits (i.e. when compared to the tax he would have paid had he been engaged as a salary and wages employee). I find that there is no basis to suggest that the parties, throughout their relationship, considered or intended for such relationship to be that of employer/employee. This is so whether I consider the facts and circumstances existing as at May 2016 (when the relationship between the parties began), or as at September 2017 (when listing and commission arrangements were revised by agreement between the parties).

[31] By way of submissions, the Applicant made various contentions in support of the characterisation of his relationship with the Respondent as that of employer/employee. 16 To the extent that matters referred to therein have not already been dealt with above, I make the following findings:

(a) Applicant’s contention: the Applicant was recruited and engaged orally, and on a personal basis (i.e. not as a representative of a corporate entity). Finding: Rejected. The documentary evidence does not support this contention.

(b) Applicant’s contention: the Applicant was able to be employed as a “commission only” salesperson under the Real Estate Industry Award 2010 (Award). Finding: Rejected. The Applicant, when first engaged in May 2016, did not have sufficient experience to qualify for employment on a commission only basis under the Award (see clause 16.2 of the Award).

(c) Applicant’s contention: the Applicant required a medical clearance as to what duties he was permitted to undertake in the role of “real estate agent” with the Respondent. Finding: This is a matter that concerns the Applicant’s fitness to perform duties and tasks. It is not a matter that assists in the determination of the relationship between the parties. In other words, whether the Applicant is fit for work as either an employee or an independent contractor is an issue of fitness for work, not an issue concerning relevant legal indicia.

(d) Applicant’s contention: the Applicant was subject to “control” in that he was required to wear a collared shirt and tie to work. Finding: This is not a matter that assists in the determination of the relationship between the parties, or any finding as to “control”. Both employees and independent contractors wear collared shirts and ties to work.

(d) Applicant’s contention: the tax invoices issued by the Applicant to the Respondent were drafted by an employee of the Respondent. Finding: This is not a matter that assists in the determination of the relationship between the parties. There is no suggestion that the Applicant did not agree to the tax invoices that were issued by JMK to the Respondent, nor did he object to the payment of those invoices (by the Respondent) to JMK. In these circumstances, who drafted such invoices (for or on behalf of the Applicant) is not to the point.

(e) Applicant’s contention: the Applicant only occupied residential premises and had no business premises. Further, the Applicant was based at, and only worked from, the Respondent’s commercial premises. Finding: This is not the evidence. The Applicant’s own evidence is that he performed work outside of the Respondent’s office. This contention by the Applicant raises serious questions as to why the Applicant has claimed “rent” as an expense (and deduction) against business income in the Returns.

(f) Applicant’s contention: the Applicant was limited to working in a specific geographic location. Finding: This is a contractual issue that might arise in an employment contract or an independent contractor agreement. This is not a matter that assists in the determination of the relationship between the parties in this matter.

(g) Applicant’s contention: the Applicant was supplied with the means of doing his job (tools and equipment) by the Respondent. Finding: This again raises serious questions as to why the Applicant has claimed expenses (and deductions) against business income in the Returns (being expenses (and deductions) that total more than 50 percent of Trust (and JMK) income, and include motor vehicle, and other, expenses).

(h) Applicant’s contention: the Applicant was disciplined in his employment by way of removing his IT access. Finding: This is a contractual issue that might arise in a relationship of principal/contractor or employer/employee. This is not a matter that assists in the determination of the relationship between the parties, nor is it a matter that is necessarily to be characterised as a disciplinary matter.

Evidence of Mr Pike and Mr Pratt, and Jones v Dunkel inference

[32] The Respondent tendered evidence in the form of witness statements from Mr Ben Pike, and Mr Lucas Pratt. The Applicant objected to the tender of these witness statements on the basis that the Respondent was not calling them as witnesses for cross-examination. Despite receiving these witness statements into evidence, I have not had regard to them in making my findings and determination in this decision.

[33] I also reject the Applicant’s contention that these witnesses (and various other witnesses identified by the Applicant) were material witnesses in the Respondent’s case concerning the jurisdictional issue for determination in this matter, such that the failure to call such witnesses gives rise to a “Jones v Dunkel” 17 inference. My view is that the evidence of Mr Stone alone has been sufficient for the Respondent to make out its case in these proceedings.

Conclusion

[34] Taxation, worker’s compensation, superannuation and long service leave legislation all contain differing provisions that ‘deem’ certain relationships (for the purposes of legislation) to be those of employer and employee. Such deeming provisions alter the common law. My task in this matter is to determine whether the Applicant was or was not an employee or independent contractor of the Respondent on the basis of the common law. What status a person may or may not be deemed to be under legislation that alters the common law (but where that legislation does not apply to the jurisdiction at hand) is not a matter that assists in the determination of the ultimate issue before me.

[35] Weighing the various indicia that I am required to consider at common law, and having regard to the evidence in this matter, the gravamen of the indicia (on the facts, and in the circumstances, of this case) point to the ‘totality’ relationship between the parties being that of principal/contractor, and not that of employer/employee. This is supported not only by the documentary evidence, but by the actual ‘conduct’ of the parties during their relationship, and the circumstances surrounding the ‘reality’ of their relationship. Overall, the hallmarks of the relationship between the Applicant and the Respondent point directly to an independent contractor relationship.

[36] I therefore find that the relationship between the Applicant (through JMK), and the Respondent, was that of principal/contractor (not employer/employee). Accordingly, the Commission has no jurisdiction to hear and determine the Applicant’s unfair dismissal application.

[37] An order dismissing the application will be issued with this decision.

DEPUTY PRESIDENT BOYCE

Appearances:

Mr Kenneth Yardy (Solicitor, Yardy Legal) appeared on behalf of the Applicant.

Mr Dean Groundwater (Solicitor, WMD Law) appeared on behalf of the Respondent.

Hearing details:

A hearing was held in Sydney on 8 November 2019.

Printed by authority of the Commonwealth Government Printer

<PR716570>

 1   Fair Work Act 2009 ss.12, 13, 380 and 381.

 2   CEPU v UGL Resources Pty Limited (Project Aurora)[2012] FWA 2966 (at [23] per Richards SDP).

 3 [2020] FCA 43.

 4   Ibid at [14] to [18].

 5 [2019] FCA 344 (at [11]-[20]).

 6 [2020] FCA 218 (at [8]).

 7   Ibid.

 8   ACT Visiting Medical Officers Association v Australian Industrial Relations Commission (2006) 153 IR 228 at 235 to 236 (Wilcox, Conti and Stone JJ).

 9   Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 29; 63 ALR 513; (1986) 60 ALJR 194; [1986] Aust Torts Reports 80-000; [1986] ACL 36085; [1986] HCA 1 (Mason J).

 10   Quest South Perth Holding (2015) 228 FCR 346 at 378; (2015) 321 ALR 404; (2015) 249 IR 256 at [143] (North and Bromberg JJ).

 11   Exhibits R3 and R4.

 12 Exhibit A2, at [19].

 13 Exhibit A2, at [31].

 14 See for example: Exhibit A1 at [9].

 15   Transcript at PN432 to 434 and PN445.

 16 Applicant’s opening written submissions at [4].

 17 (1959) 101 CLR 298; [1959] ALR 367; 32 ALJR 395; (1959) 18 CA 8; [1959] HCA 8.