Judith Tozer v The Trustee for the Downie Family Trust
[2023] FWC 1847
•26 JULY 2023
| [2023] FWC 1847 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Judith Tozer
v
The Trustee For The Downie Family Trust
(U2023/3386)
| COMMISSIONER SIMPSON | BRISBANE, 26 JULY 2023 |
Application for an unfair dismissal remedy
On 20 April 2023, Ms Judith Tozer (the Applicant) filed a Form F2 application for unfair dismissal remedy against The Trustee For the Downie Family Trust (the Respondent). The Applicant said she commenced employment with the Respondent on 8 August 2022 and was dismissed on 2 April 2023.
On 8 May 2023 the Respondent filed a Form F3 Response to the application objecting to the application on the basis that the Applicant was not an employee, and was instead an independent contractor, operating as TSF Contracting and further that the Applicant had advised by text message on 27 March 2023 that she intended to end her contract work on 5 April 2023. The Respondent said before that time it became aware of conduct on the part of the Applicant that caused the Respondent to advise the Applicant not to return after the completion of work on 1 April 2023.
SUBMISSIONS AND EVIDENCE
I issued directions to hear and determine the jurisdictional objection that the Applicant was not an employee. Both parties filed material and the matter was heard on 20 July 2023 by Microsoft Teams.
The Respondent as the objector, filed nine witness statements, however only four of those witnesses were required to give evidence. Ms Lynda Downie provided an initial statement[1] and written submission, and a further submission in reply which she adopted as evidence.[2] The Respondent also relied on the evidence of Ms Jessica Porteous,[3] Margot Yuille,[4] and Mr Peter Fornasier.[5] I determined I did not require to hear from the other five persons who had filed statements in the Respondent’s case.
The Applicant filed a written submission which she adopted as her evidence.[6]
It was common ground that there was no written contract between the parties. Ms Downie gave evidence that she was approached by the Applicant seeking work for her contracting services business. Ms Downie said she had no employed positions available.
Ms Downie said the Applicant was well spoken and offered her a very broad range of hospitality skills. Ms Downie said she told the Applicant that she lacked the appropriately skilled staff to properly manage her accommodation bookings systems and was significantly hindered by her rising accommodation arrears. Ms Downie said that the Applicant explained that she would be capable of recovering arrears, implementing new systems in the booking program, and tidying up emails, while also working in reception. Ms Downie said the Applicant told her she had experience with ‘GUESTPOINT’, the accommodation system used by the Respondent.
Ms Downie said that the Applicant advised her on multiple occasions that the Respondent would be engaging the Applicant as contractor rather than an employee. Ms Downie said the Applicant confirmed she would be paid by invoice.
The Applicant said in her own statement that when she discussed with Ms Downie working for the Respondent, she accepted that she asked Ms Downie about being paid under an ABN. It was common ground that no agreement was formalised during this discussion and the Applicant said Ms Downie asked her to send through her resume.
The Applicant said during this initial discussion at no time during the conversation did the Applicant and Ms Downie ever discuss the specific details of her role or any role. In her reply statement Ms Downie said during the first meeting the Applicant explained her broad experience in hospitality. In a subsequent email sent to the Applicant Ms Downie was complimentary of the Applicant’s credentials, said they would need to negotiate the Applicant’s ‘wages’ and she referred to the Applicant as an ‘allrounder’. The Applicant has relied on the use of that term to submit that it infers Ms Downie intended that the Applicant would be an employee and not a contractor.
On 27 July 2022 the Applicant emailed Ms Downie her resume. The resume included a statement that she works in her own business as a contractor in TSF Contracting Services. The resume was provided as an attachment to the Ms Downie’s statement, and it includes the following under a heading employment and business:
“TSF Contracting (Current) Self Employed Contractor
v Provide management relief services to Hotels & Motels
v Provide admin relief services to Hotels & Motels;
v Provide cooking services for shearing & cattle contractors;”
Ms Downie said after reading the resume she did a google search and found an active Facebook page and the advertised email on the page was the same as on the resume. Ms Downie provided a copy of the Facebook page for TSF Contacting with her statement.
On 3 August 2022 Ms Downie sent an email to the Applicant which included the following:
“I think with your experience we could utilise you as an allrounder for whatever many days you want to work.
So the short answer is yes, we would love to have you on board just need to sort a few minor details out….”
Ms Downie said she asked the Applicant what days and hours she wished to work. The Applicant accepted in her oral evidence that she did not appear on the Hotels roster as other staff did, but provided weekly invoices to the Respondent which set out the days and hours she worked which were very similar from week to week. The Applicant also said she was not a roster as she was the only one working in reception. Ms Downie said she was working in reception as were others. Ms Downie said the Applicant worked in accommodation and reception to do the work she had been given to do. Ms Downie agreed that after she had sent the email to the Applicant, the Applicant went to see her and they had a discussion about when the Applicant would start. Ms Downie confirmed that she said to the Applicant she could work whatever hours she liked. Ms Downie maintained that it was the Applicant who wanted to work a sixth day on a Sunday and not the Respondent. Both parties accepted the final hours settled was done on the basis of an agreement struck between them. It is apparent this was not a situation where the Respondent was directing the Applicant as to the hours they would work.
Ms Downie said that the Applicant emailed her on 17 August, which was soon after her commencement and following the payment of the Applicant’s first invoice to the Respondent, requesting that Ms Downie advise her accountant to alter the description on the deposit payment reference to remove the word ‘wages’ and in its place to use the word ‘invoice’. Ms Downie said she was not aware that the incorrect description had been used and emailed her external accountants and they corrected the description. These emails were provided with her statement.
The Applicant said in her written evidence that Ms Downie instructed her that she would work standard set hours Sunday to Friday 9am to 4pm. When Ms Downie insisted that the hours were as proposed by the Applicant, the Applicant appeared to retreat during her oral evidence from the position that Ms Downie directed her to work these hours, instead describing it as an agreement that they had reached.
The Applicant accepted that she invoiced the Respondent for her work to be paid to TSF Contracting. The Applicant said in her oral evidence that she wished to be paid as TSF Contracting because she had a tax problem, however did not elaborate on this statement. Further the Applicant did not make any reference to having a tax problem in her written statement, and only first raised it during the hearing.
There is a dispute in the evidence to the extent that Ms Downie maintains that part of the discussion with the Applicant before her engagement was that she would work on the project of clearing up significant arrears. The Applicant agreed she did such work and further that she recovered significant arrears for the Respondent, however, maintains that this was not discussed before her commencement as a project task, and it was only later she was instructed to chase outstanding accounts as part of her daily duties.
Ms Downie referred in her reply statement to the statement of the Applicant where the Applicant said “From August 2022 to December 2022 the applicant worked diligently as part of her daily duties to recover all outstanding accounts and was successful in doing so...”, to support her claim that was the primary role she was engaged for.
Ms Downie said the Applicant was paid when Ms Downie received her weekly invoice, and she was not included in the weekly pay run with the other staff. The money was paid into an account in the business name on the invoice TSF Contracting Services.
Ms Downie said that the Applicant used the Respondent business the Royal Hotel to promote her businesses. It was not in contest that the Applicant had two separate registered businesses, TSF Contracting Services, and another business called TSF Digital Media Contracting Services.
Ms Downie said the Applicant attempted to engage multiple different businesses offering her specialised skills in administration, including Flinders Diesel Services, Hughenden Chamber of Commerce, Hughenden Show Society, Hughenden Country Club and Central Motel Mount Isa. It was put to Ms Downie that TSF Contracting Services had never been a member of the Chamber of Commerce and it was TSF Digital Media Contracting Services who was a member. Ms Downie said that she was not aware of that.
The Applicant said she cancelled the business name TSF Contracting with effect from 28 April 2023, which was some weeks after the relationship with the Respondent had come to an end.
Ms Porteous gave evidence that in the time the Applicant was present at the Royal Hotel, Ms Porteous had multiple conversations with the Applicant, and one of the main conversations was regarding her contracting business and included that the Applicant was a contractor not an employee like Ms Porteous. Ms Porteous claimed that she had heard the Applicant offering her business services to customers. Ms Porteous said the Applicant had said to her that she had been engaged by the Respondent as a contractor. The Applicant rejected this claim. It was put to Ms Porteous that the work she did in relation to website was performed by another business. Ms Porteous said the Applicant also said to her that she did relief management through her business. Ms Porteous continued to maintain that the Applicant had offered her business services including administrative services to customers in the Hotel. The Applicant rejected that.
Ms Yuille, who is the Head Chef, gave evidence that the Applicant would speak about her business TSF Contracting and how she is paid by Ms Downie, and that the Applicant would speak about Ms Downie in a demeaning way, and suggest Ms Downie didn’t know how to run the business and that is why the Applicant was at the Royal Hotel. Ms Yuille said on one occasion when working in the kitchen, the Applicant said she was leaving, and Ms Yuille said she asked the Applicant to help clean and wipe the bench for packdown, to which the Applicant replied “I’m not staff nor do I work for you’, and ‘I have my own private contract with Lynda and that doesn’t involve washing dishes or cleaning’. Ms Yuille gave a slightly different version of the conversation in her oral evidence, however on the key issue that the Applicant had told her she had a contracting arrangement with the Respondent she was consistent. Ms Yuille said in her oral evidence that she knew that the Applicant had two businesses. Ms Yuille was asked whether she agreed that discussions concerning the websites and photography were offered under the Applicant’s others business. Ms Yuille said she was unaware. Ms Yuille’s evidence was to the effect that the Applicant had told her she also offered administrative support and relief management through her businesses.
Ms Yuille said that the Applicant would tell clients and people at the bar about her business, and she was always trying to promote herself and her business whilst she was at the Royal. The Applicant rejected the statements in Ms Yuille’s evidence as untrue.
Mr Fornasier, the President of the Hughenden Chamber of Commerce, gave evidence that the Applicant offered her services to the Chamber. He said the Applicant informed the Chamber that she had a contract business and was currently engaged by the Royal Hotel. He said that the Applicant said to the Chamber she could offer website reconstruction however he said the Chamber declined.
Mr Fornasier said the Applicant registered her business TSF Digital Media Contracting Services as a member of the Chamber on 15 October 2022 paid the registration fee, and her business was then advertised on the Chambers website. Mr Fornasier said that the Applicant attended one meeting and introduced herself as TSF Contracting Services, and offered to take photos at the Christmas street party to show case her abilities. It became apparent that the TSF Digital Media Contracting Services was a separate business of the Applicant’s to TSF Contracting and the TSF Digital Media Contracting Services was the business that the Applicant had instigated becoming a member of the Chamber, and not TSF Contracting Services which was the entity that the Applicant instructed arranged for the Respondent to pay for her engagement at the Respondent. Mr Fornasier maintained that the Applicant had said that the Applicant had said she could do administrative work, and also website work. The Applicant put to Mr Fornasier that she did not offer administrative work and he appeared maintain that she had done so but could not be any more specific.
The Applicant accepted in her oral evidence that she worked on debt recovery on a daily basis, however the Applicant described it as a part of her daily duties. It was put to the Applicant that it was the primary reason for her engagement. The Applicant said she performed other duties. The Applicant was asked if she considered herself an employee why did she ask to be paid as a contractor by invoices. The Applicant said in her oral evidence it was because she had a tax problem and she could only earn so much on wages. The Applicant claimed she told Ms Downie about her tax problems from the start, however this was not said in any of her written material. Ms Downie put to the Applicant that she was not aware of ever being told the Applicant had tax problems. The Applicant maintained that they had been discussed.
CONCLUSION
In accordance with recent High Court authority in the decision of Construction, Forestry, Maritime, Mining and Energy Union & Anor v Personnel Contracting Pty Ltd [2022] HCA 1, a contract focussed approach is now the law in Australia for the purposes of resolving disputes of this kind.
This approach requires that where a contract is not wholly written, it is permissible to have regard to the subsequent conduct of the parties to ascertain what they were taken to have agreed in making the contract.
The multifactorial approach as previously applied, and to which much of the Applicant’s material was directed, has been rejected by the High Court. The considerations that previously formed indicia in the multifactorial approach now have a limited role, and it is the terms of the contract which must be determined.
It is apparent from the evidence that the Applicant approached the Respondent about being engaged by the Respondent, and it was the Applicant and not the Respondent that proposed that the Applicant should be paid by invoice and not as an employee. The Applicant forwarded a resume to the Respondent clearly identifying that she was currently a self-employed contractor, and the resume included language that indicates that the services the business referred to in the resume, and owned by the Applicant, were in the nature of the services that the Respondent says the Applicant was engaged to perform.
I am also satisfied that whilst it is true that the hours of work performed by the Applicant were regular and systematic as would be expected in the case of a full-time employee, the hours were not as directed by the Respondent but as agreed between the parties. The Applicant was not on a roster as all other employees of the Respondent were. The Applicant submitted that the evidence of Ms Porteous and Ms Yuille should be given no weight as the Applicant had previous filed a separate bullying application against them. It appeared to me that both those persons were firm in their oral evidence and gave evidence that was consistent with their earlier written statements that the Applicant had represented to them that she was a contractor and not an employee as they both were.
I am satisfied on an analysis of the evidence that the nature of the rights and obligations under the contract made between the Applicant and the Respondent was consistent with it being a contract for service, and not a contract of service. I am satisfied that the Applicant exercised a degree of control over her arrangements with the Respondent that is consistent with the contract between them being an independent contracting agreement and not employment. The Respondent did not exercise the legal control of the Applicant that would be required in order for the relationship to have been one of employment.
On the basis of the conclusions above, the Respondent’s jurisdictional objection is upheld and the Applicant’s unfair dismissal application is dismissed. An order to this effect with be issued separately and concurrently with this decision.
COMMISSIONER
Appearances:
Ms Judith Tozer on her own behalf.
Ms Lynda Downie for the Respondent.
Hearing details:
2023
By Microsoft Teams.
20 July
[1] Exhibit 1
[2] Exhibit 2
[3] Exhibit 3
[4] Exhibit 4
[5] Exhibit 5
[6] Exhibit 6
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