Julie Whiteside v Pancare Foundation
[2020] FWC 2833
•15 JUNE 2020
| [2020] FWC 2833 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Julie Whiteside
v
Pancare Foundation
(U2020/3849)
COMMISSIONER LEE | MELBOURNE, 15 JUNE 2020 |
Application for unfair dismissal remedy - jurisdiction - whether Respondent was a small business at the time of the dismissal - whether Applicant had completed the minimum employment period at the time of dismissal - satisfied that Respondent was a small business at time of dismissal - not satisfied the Applicant had completed the minimum employment period at the time of dismissal. Jurisdictional objection upheld. Application dismissed.
[1] On 30 March 2020, Mrs Julie Whiteside (the Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act (the Act) for an unfair dismissal remedy in respect of the termination of her employment by the Pancare Foundation (the Respondent). The Respondent asserts that the Applicant is not a person protected from unfair dismissal as she has not completed the minimum employment period at the time of the dismissal. The Respondent asserts that the Applicant was only employed as a full-time employee by the Respondent from 4 August 2019 to 17 March 2020. The Applicant asserts she was employed from 1 May 2019 to 17 March 2020. The Respondent also asserts it was a small business employer as defined in the Act at the time of dismissal with 11 employees.
Background
[2] Prior to the hearing, I provided a background document to the parties (the Background document) which drew upon the evidence filed in the matter. The purpose of the Background document was to facilitate the efficient conduct of the proceedings. The Background document and its contents were canvassed with the parties during the hearing. Based on the document circulated as amended to reflect the statements of the parties during the hearing, the Background to the matter can be summarised as follows: 1
1. The Applicant commenced working for the Respondent, either as a contractor or as an employee, on 29 April 2019.
2. The Applicant submits that she was an employee from 29 April 2019 until her dismissal on 17 March 2020. (a period of 10 months and 18 days)
3. The Respondent submits that the Applicant was in a contractor relationship with the Respondent from 29 April 2019 until 4 August 2019. It is common ground that the Applicant was an employee of the Respondent from 5 August 2019 until her dismissal on 17 March 2020 (a period of 7 months and 12 days)
4. On either case, it is apparent that the Applicant has completed a period of continuous service with the Respondent or more than 6 months, and less than 12 months.
5. The Respondent disputes that the Applicant has completed a period of employment that is at least the minimum employment period prior to when the termination of employment took effect on 17 March 2019 (the relevant time).
6. Sections 383 and 384 of the Act is in the following terms:
“383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.
384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.”
7. As stated above, it is apparent that the Applicant has completed a period of continuous service with the Respondent of more than six months, and less than 12 months. Therefore, if the Respondent was not a small business employer at the relevant time, then it follows that the Applicant has completed a period of employment of at least the minimum employment period. If the Respondent was a small business employer at the relevant time, then it follows that the Applicant has not completed a period of employment of at least the minimum employment period.
Small business:
8. Section 23 of the Act sets out the meaning of a small business:
“23 Meaning of small business employer
(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.
(2) For the purpose of calculating the number of employees employed by the employer at a particular time:
(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and
(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.
(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.
(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):
(a) the employee who is being dismissed or whose employment is being terminated; and
(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.”
9. It is common ground that the following persons were employees of the Respondent at the relevant time
• Julie Whiteside;
• Sonia Mursee;
• Sarah Collings;
• Elizabeth Andrews;
• Kelly Stevenson;
• Yvonne Jani;
• Shannon Gleeson;
• Linda Kerr;
• Alexandra Monday;
• Sheena Delaney; and
• Bernadette Muscat.
This is a list of 11 employees, including the Applicant.
10. The Applicant asserts that the following four persons (The Four Persons) were also employees at the relevant time:
• Tami McMahon;
• Stephanie Roberts;
• Doug Hawkins; and
• Sonia Fanizza.
11. The Respondent disputes that The Four Persons were employees at the relevant time.
12. It is apparent therefore that if it is determined that any one of The Four Persons was not an employee, the Respondent employed fewer than 15 employees and was therefore a small business at the relevant time. In the event that all of The Four Persons were employees at the relevant time the Respondent was not a small business at the relevant time.
13. Therefore, the key question to be determined in this matter is whether any or all of The Four Persons was not an employee at the relevant time. This will resolve whether the Respondent was a small business employer at the time the Applicant was dismissed. This is relevant to the determination of whether the Applicant meets the minimum employment period as the Applicant had completed a period of continuous service with the Respondent of more than 6 months but less than 12 months.
Was the Respondent a Small Business at the time of the dismissal?
The Evidence
[3] At the hearing before me the Applicant and the CEO for the Respondent, Mr Doug Hawkins, appeared. Also, Ms Stephanie Roberts, a person named in the Applicant’s submissions as an employee, appeared. All three persons present gave sworn evidence.
[4] The contest in this matter as to the status of The Four Persons is entirely related to whether or not any or all of The Four Persons were contractors at the relevant time or whether they were employees. Ultimately for reasons that will become clear, it was only necessary to deal in detail with the evidence as it pertains to Ms Roberts. However, at the conclusion of dealing with the situation of Ms Roberts I will make some observations about the evidence as to the likely nature of the relationships of the other persons, including the Applicant, for the period from 29 April 2019 through until 4 August 2019.
[5] Whether Ms Roberts was an independent contractor or an employee of the Respondent at the relevant time for the purposes of an application for unfair dismissal remedy is one of jurisdictional fact.
[6] In Tong Van Nguyen v Prestige Automotive Services Pty Ltd, 2 Deputy President Gostencnik succinctly sets out the relevant law which is reproduced below:
“There are well established case law principles that have been developed by the courts and this tribunal to determine whether an individual is an employee. The courts have developed a multi-factorial approach, in which there is no single decisive criterion, to determine whether a contractual relationship is one of employment or one subject to a contract for services.3 That approach is usually applied in two areas where the distinction is important: first in disputes about the duties and obligations owed by the contracting parties to each other; secondly in disputes about whether one party is liable to a third party for injury caused by the other party in the performance of the contract.4 The usual premise for the application of this approach is the existence of a contract whereby one person is engaged and paid by another for the provision of work or services, thus requiring the contract to be properly characterised in order to determine the parties’ rights and obligations. The various indicia which are considered under the multi-factorial approach, were set out in Jiang Shen Cai trading as French Accent v Do Rozario,5 and have to a significant degree been shaped by that employee/independent contractor dichotomy.
In French Accent,6 a Full Bench of Fair Work Australia helpfully summarised the general law approach to distinguishing between employees and contractors as follows:
“(1) In determining whether a worker is an employee or an independent contractor the ultimate question is whether the worker is the servant of another in that other’s business, or whether the worker carries on a trade or business of his or her own behalf: that is, whether, viewed as a practical matter, the putative worker could be said to be conducting a business of his or her own of which the work in question forms part? This question is concerned with the objective character of the relationship. It is answered by considering the terms of the contract and the totality of the relationship.
(2) The nature of the work performed and the manner in which it is performed must always be considered. This will always be relevant to the identification of relevant indicia and the relative weight to be assigned to various indicia and may often be relevant to the construction of ambiguous terms in the contract.
(3) The terms and terminology of the contract are always important. However, the parties cannot alter the true nature of their relationship by putting a different label on it. In particular, an express term that the worker is an independent contractor cannot take effect according to its terms if it contradicts the effect of the terms of the contract as a whole: the parties cannot deem the relationship between themselves to be something it is not. Similarly, subsequent conduct of the parties may demonstrate that relationship has a character contrary to the terms of the contract.
(4) Consideration should then be given to the various indicia identified in Stevens v Brodribb Sawmilling Co Pty Ltd and the other authorities as are relevant in the particular context. For ease of reference the following is a list of indicia identified in the authorities:
• Whether the putative employer exercises, or has the right to exercise, control over the manner in which work is performed, place or work, hours of work and the like.
Control of this sort is indicative of a relationship of employment. The absence of such control or the right to exercise control is indicative of an independent contract. While control of this sort is a significant factor it is not by itself determinative. In particular, the absence of control over the way in which work is performed is not a strong indicator that a worker is an independent contractor where the work involves a high degree of skill and expertise. On the other hand, where there is a high level of control over the way in which work is performed and the worker is presented to the world at large as a representative of the business then this weighs significantly in favour of the worker being an employee.
“The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter’s order and directions.” “[B]ut in some circumstances it may even be a mistake to treat as decisive a reservation of control over the manner in which work is performed for another. That was made clear in Queensland Stations Pty. Ltd v Federal Commissioner of Taxation, a case involving a droving contract in which Dixon J observed that the reservation of a right to direct or superintend the performance of the task cannot transform into a contract of service what in essence is an independent contract.”
• Whether the worker performs work for others (or has a genuine and practical entitlement to do so).
The right to the exclusive services of the person engaged is characteristic of the employment relationship. On the other hand, working for others (or the genuine and practical entitlement to do so) suggests an independent contract.
• Whether the worker has a separate place of work and or advertises his or her services to the world at large.
• Whether the worker provides and maintains significant tools or equipment.
Where the worker’s investment in capital equipment is substantial and a substantial degree of skill or training is required to use or operate that equipment the worker will be an independent contractor in the absence of overwhelming indications to the contrary.
• Whether the work can be delegated or subcontracted.
If the worker is contractually entitled to delegate the work to others (without reference to the putative employer) then this is a strong indicator that the worker is an independent contractor. This is because a contract of service (as distinct from a contract for services) is personal in nature: it is a contract for the supply of the services of the worker personally.
• Whether the putative employer has the right to suspend or dismiss the person engaged.
• Whether the putative employer presents the worker to the world at large as an emanation of the business.
Typically, this will arise because the worker is required to wear the livery of the putative employer.
• Whether income tax is deducted from remuneration paid to the worker.
• Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks.
Employees tend to be paid a periodic wage or salary. Independent contractors tend to be paid by reference to completion of tasks. Obviously, in the modern economy this distinction has reduced relevance.
• Whether the worker is provided with paid holidays or sick leave.
• Whether the work involves a profession, trade or distinct calling on the part of the person engaged.
Such persons tend to be engaged as independent contractors rather than as employees.
• Whether the worker creates goodwill or saleable assets in the course of his or her work.
• Whether the worker spends a significant portion of his remuneration on business expenses.
It should be borne in mind that no list of indicia is to be regarded as comprehensive or exhaustive and the weight to be given to particular indicia will vary according to the circumstances. Features of the relationship in a particular case which do not appear in this list may nevertheless be relevant to a determination of the ultimate question.
(5) Where a consideration of the indicia (in the context of the nature of the work performed and the terms of the contract) points one way or overwhelmingly one way so as to yield a clear result, the determination should be in accordance with that result. However, a consideration of the indicia is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture of the relationship from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another. The ultimate question remains as stated in (1) above. If, having approached the matter in that way, the relationship remains ambiguous, such that the ultimate question cannot be answered with satisfaction one way or the other, then the parties can remove that ambiguity a term that declares the relationship to have one character or the other.
(6 ) If the result is still uncertain then the determination should be guided by “matters which are expressive of the fundamental concerns underlying the doctrine of vicarious liability” including the “notions” referred to in paragraphs [41] and [42] of Hollis v Vabu.”7
[7] I will now consider these indicia in the context of this case.
Control
[8] Ms Roberts is the director of a business known as The Melbourne Minute. It is apparent that Ms Roberts offered the services of her business to the Respondent on 26 October 2018, in the terms set out in the letter below:
“26th October 2018
Pancare Foundation
48 Bell Street,
HEIDELBERG HEIGHTS VIC 3081
Dear Barry,
Thank you for providing The Melbourne Minute the opportunity to prepare the minutes for your upcoming Board meetings. I look forward to an ongoing professional relationship with Pancare.
The Melbourne Minute is a grassroots company, providing personalised and professional attention to our clients. We pride ourselves with our level of commitment and confidentiality, and our attention to detail.
To this end, I will ensure that the Board meeting minutes will be prepared to the highest standard and shall be returned to you within 24 hours for approval and sign-off.
Our fees are as follows:
Meeting attendance: $60.00 per hour
Board minutes package*: $250.00
*inclusive of minutes, action items and notes.
A tax invoice will be forwarded to you upon completion of the minutes.
I look forward to seeing you on Wednesday 31st October at 8.00 AM.
Yours Faithfully,
Stephanie Roberts
Director
The Melbourne Minute
Phone: 0410-034-859
Email: [email protected]
Website: Ms Roberts’ evidence is that since that time she provided services to the Respondent consistent with the terms of that letter. Subsequently, the service expanded to include a “full service” which Ms Roberts described as including the amalgamation of board papers and “more of a holistic kind of view of minute-taking”. 9
[10] Ms Roberts’ evidence is that she:
• does not work from the Respondent’s office and was not involved in any internal meetings with the Respondent’s staff; 10
• does not receive group any communications sent to the Respondent’s staff members and is not and has never been a part of the internal email group “Pancare Staff”; 11
• does not take direction from the Respondent’s staff members; 12 and
• takes requests and instructions from the Chairperson and Treasurer of the Respondent’s Board, relating to the minute taking services which are provided on average ten times per annum. 13
[11] It is apparent from the evidence that Ms Roberts exercises a significant amount of control over the way in which she performs the work. The lack of any significant degree of control over Ms Roberts by the Respondent and the manner in which she performs her work weighs against a finding that Ms Roberts was an employee.
Performs work for another
[12] Ms Roberts’ evidence is that her business, The Melbourne Minute, generated 22% of its revenue from the Respondent in the three months leading up to 17 March 2020, while 78% of its revenue was derived from its other clients. This claim was supported in a letter from ATM Consultants, the accountant for The Melbourne Minute. 14 There is no doubt that Ms Roberts and The Melbourne Minute perform a significant amount of work for others. This weighs against a finding that Ms Roberts is an employee.
Delegation or sub-contracting
[13] Ms Roberts’ uncontradicted evidence is that an employee of her business, Jasmin, has previously, on her delegation, performed the minute-taking task at the Respondent. It is clear that Ms Roberts has exercised a right to delegate or sub-contract the work. 15 This weighs against a finding that Ms Roberts is an employee.
Uniform
[14] Ms Roberts does not wear a uniform. This factor weighs against a finding she is an employee.
Whether the worker has a separate place of work or advertises his or her services to the world at large.
[15] The evidence shows that Ms Roberts company The Melbourne Minute has its own business address in Melbourne. 16 It is also apparent that the Melbourne Minute advertises its services to the world at large.17
Salary and tax
[16] In response to a request from me, invoices were provided by Ms Roberts that she has served on the Respondent. The invoices clearly relate to tasks performed for the Respondent such as attendance at board meetings, preparation of minutes, and amalgamation of board papers and correspondence. There is no evidence that income tax was deducted from the payments for these invoices. The invoices also evidence that Ms Roberts is paid by reference to the completion of tasks, rather than periodic wages and salary. The invoices and method of payment are clearly consistent with that of a contractor relationship and weighs against a finding that Ms Roberts was an employee.
Description of relationship
[17] There is no detailed contract as such in evidence. However, the letter clearly sets out the terms, of a contractual relationship based on the provision of particularised services and the cost of those services. Consideration of this indicia weighs against a finding there was an employee relationship. 18
Tools or equipment
[18] The Respondent provided no tools or equipment to Ms Roberts. Indeed, Ms Roberts’ computer and mobile phone are the property of The Melbourne Minute. 19 The only evidence to the contrary on this point was the use by Ms Roberts of an email address on the Respondent’s email server and the Respondent’s logo in this addresses’ email signature.20 I deal with this factor below. The evidence on this point, overall, weighs against her being an employee.
Whether the putative employer presents the worker to the world at large as an emanation of the business.
[19] As mentioned above, Ms Roberts uses the Respondent’s in-house email, including an email address on the Respondent’s email server. Her evidence was that she was asked by the previous chairperson of the Respondent to do so “for governance and security purposes”. 21 Whatever the reason, the use of the email address and logo serves to present Ms Roberts, to some extent, to the world at large as an emanation of the business. Consideration of this factor weighs towards a finding that Ms Roberts is an employee.
[20] In Tong Van Nguyen v Prestige Automotive Services Pty Ltd, 22 Deputy President Gostencnik made the following observation with which I agree:
“[40] It should now be uncontroversial that a multi-factorial assessment is required in evaluating whether a person providing personal services is an employee or alternatively an independent contractor. This is because it is “the totality of the relationship” which is to be considered, not just its form.23 It may also be accepted that the distinction between an employee 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”.24 As North and Bromberg JJ observed in Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd25 this difference was referred to by Wilson and Dawson JJ in Stevens v Brodribb SawmillingCompany Proprietary Limited26as a characterisation of “the ultimate question”.27 That point of distinction has been elsewhere referred to as the “ultimate question” posed by the totality approach or “the focal point” of that approach.28
[41] If an independent contractor is a person like the Applicant who the Respondent says in effect, operates a business, it is necessary to consider the hallmarks of a business. Some businesses have complex operations. Others adopt a lean or simple form. Some of the typical indicia of a business will be more relevant in some settings than in others. Businesses of the kind alleged to have been conducted by the Applicant are more likely to have a simple and less sophisticated structure. However, even a small, simple commercial enterprise will have some of the fundamental hallmarks of a business, though modest they may be. As North and Bromberg JJ also observed in Quest:
“. . . The pursuit of profit is at the core of entrepreneurship and to be regarded as one of the primary hallmarks, if not the primary hallmark, of a business. A commercial enterprise, no matter how small, is an undertaking in which time, money, and effort are risked in the hope of making a profit. Unlike the employee, who will be content to be remunerated with a wage which reflects the value of the personal services provided, the entrepreneur providing commercial services will want to be remunerated by making a profit. In pursuit of a profit, the independent contractor will not merely seek remuneration commensurate with the value of the personal services or work provided, but will want a return on the risk and expense involved in running a business.”29
[42] Apart from the pursuit of profit, the nature of the economic activities and the organisational structures of an enterprise will tend to distinguish it as a business. The following indicators were distilled from the authorities in On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3):30
• Do the economic activities of the putative business involve the taking of risk in the pursuit of profits?31
• Does the putative business engage in a repetitive and continuous manner with purchasers of its services?32
• Does the putative business employ or engage persons other than the owner/operator to carry out its economic activities?33
• Is goodwill (name, brand and reputation) being created by the economic activities of the putative business?34
• Is the putative business promoted as a business to the public through advertising or other promotional means?35
• Does the putative business have tangible assets such as buildings and equipment which are utilised to support its economic activities?36
• Does the putative business have the basic transactional systems that are common of a business of that kind? For instance: invoicing systems; standard rates and terms and conditions of trade; insurance coverage; payment and debt collection systems; appropriate financial records; budgeting or forecasting systems; business based arrangements with a bank or other financial institution;37
• Do the services provided by the putative business involve the provision of labour of sufficient skill to be suggestive of the pursuance of a profession or trade through a business?38
• Are the regulatory requirements of a business (including business name registration, taxation, GST and ABN registration and compliance) being met by the putative business?39”
[21] Further, the Full Bench in the 4 yearly review of modern awards – Casual employment and Part-time employment made the following observation:
“[57] In Cetin v Ripon Pty Ltd t/as Parkview Hotel, 40 a Full Bench of the AIRC (Ross VP, as he then was, Duncan SDP and Roberts C) considered whether an Applicant for relief in respect of termination of employment was a “casual employee engaged by a particular employer for a short period” within the meaning of reg.30B(1)(d) of the WR Regulations (in the form that it then was) and thus excluded from the AIRC’s jurisdiction. The Full Bench applied the reasoning in Hamzy to the facts of the particular case to reach the conclusion that the Applicant did not fall within the exclusion in reg.30B(1)(d), and said (footnotes omitted):
“[60] At the time her employment was terminated Ms Cetin was regularly working four shifts per week on Thursday, Friday, Saturday and Sunday evenings. It was understood between the parties that Ms Cetin was expected to turn up for work every week on those nights. If Ms Cetin was unable to work on a particular night she was obliged to give notice. Since November 2002 any fluctuation in Ms Cetin’s hours was due to fluctuation in the restaurant’s closing time on a particular night. Ms Cetin’s employment could not reasonably be said to be informal, uncertain or irregular. To the contrary, her employment was regular and systematic, and would have given rise to a reasonable expectation of continuing employment.
[61] In the matter before us the parties characterised Ms Cetin’s employment as casual and her employment was classified as casual under the Award. But in our view it would be wrong in principle to treat the character ascribed by an award to particular employment, and adopted by the parties, as conclusively determining the character of the employment for the purpose of regulation 30B(1)(d). Nor is the fact that Ms Cetin was paid a casual loading in lieu of sick leave, annual leave and public holidays determinative of whether or not she was a casual employee for the purpose of regulation 30B(1)(d). Each of these incidents is a consequence of the characterisation chosen by the parties. Rather than being conclusive, each of these matters are simply factors to be taken into account in determining the true character of the employment. As Lee J observed in Gurran v Tarbook Pty Ltd:
‘If parties to an employment contract have attempted in the terms of their contract to describe their relationship in a manner that does not accord with the facts, the relationship established by the facts will prevail.’
[62] Similarly as counsel in Re Porter put it: the parties cannot create something which has every feature of a rooster, but call it a duck and insist that everybody else recognise it as a duck.” 41
[22] In the case before me, it is quite clear Ms Roberts is involved through her ownership of The Melbourne Minute, of involving herself in the activity of taking risk in order to pursue a profit. She exercises a high degree of control over the time and manner she performs the work, she has a significant number of other customers, the regularity of her work is determined by the times the Board meets, and when she is unable to attend she has delegated the work to an employee. She is not supplied with any tools or equipment beyond an email address which is not significant when context is understood. However, the fact of the use of that email address and logo does favour a finding that Ms Roberts is an employee. However, it is the only one of the indicia favouring that conclusion. The Melbourne Minute has its own business address and advertises its services. 42 Ms Roberts generated invoices which reflect the contractor relationship.
[23] Taking all of the factors into account, it is apparent that Ms Roberts was not an employee of the Respondent at the relevant time. The consideration of the indicia weighs strongly in favour of a finding that Ms Roberts is engaged in a contract for service. That is, the relationship is one of principal and contractor.
[24] As Ms Roberts was not an employee, on the facts the Respondent had 14 or less employees at the relevant time and was therefore a small business at the relevant time. As the Applicant had completed less than 12 months period of employment, she is not a person protected from unfair dismissal.
[25] In the circumstances, it is not necessary to determine the status of the remaining persons in contest, though it is appropriate that I make some observations about them.
[26] I note that Mr Hawkins, the CEO of the Respondent, was inconsistent with his evidence and appeared to lack an understanding as to the difference between a contractor relationship and an employee relationship. To illustrate the point, Mr Hawkins asserted in the material filed prior to the hearing, but only for a short time during the hearing, that Ms Fanizza was a contractor at the relevant time. The only evidence as to the nature of the relationship of Ms Fanizza to the Respondent was a letter to her dated 14 January 2020. That letter was in the following terms:
“Dear Sonia,
OFFER OF EMPLOYMENT: Interim Business Development Manager - Events
I am pleased to offer you casual employment with Pancare Foundation (Pancare) as the Business Development Manager - Events.
1. COMMENCEMENT
1.1 Your casual employment with Pancare commences on Monday 3rd February 2020.
1.2 Your contract is for three (3) months with the possibility of extension upon negotiation.
2. POSITION
2.1 Your position is Business Development Manager - Events and you will be contracted on a full time, casual basis.
2.2 Your duties and responsibilities are set out in the Job Description supplied to you. You are required to carry out other duties reasonably required by Pancare that you are skilled and capable of performing.
2.3 You agree that the terms of this Contract continue to apply unless varied and mutually agreed in writing in accordance with this Contract.
3. REPORTING
3.1 You will report to CEO at Pancare.
4. LOCATION
4.1 As at the commencement date of your employment your primary place of work will be at the Pancare office at 70 Yarra Street, Heidelberg.
4.2 Pancare may require you to work at other locations as the needs of the business require.
4.3 Pancare offers the flexibility to work from home when appropriate to do so.
5. REMUNERATION
5.1 Your salary will be paid as a daily rate of $461.50 + superannuation.
5.2 The net cash amount of your salary will be paid by Thursday of each fortnight, or nearest business day, into the back account of your choice.
5.3 Your salary and other employment conditions are confidential and must not be discussed with other employees of Pancare.
6. SUPERANNUATION
6.1 Nina and a half percent (9.5%) of your base salary or the minimum amount as legislated from time to time, will be paid into a complying superannuation fund of your choice.
7. HOURS OF WORK
7.1 Your hours of work will be 38 hours per week, with flexibility to set these hours as required.
8. PERFORMANCE
8.1 During your employment with Pancare, you are required to do the following:
8.1.1 carry out all alwful and reasonable instructions given to you in relation to your employment;
8.1.2 perform your duties and responsibilities in a proper and efficient manner;
8.1.3 use your best endeavours to protect and promote Pancare’s business; and
8.1.4 you represent to use that there are no limitations on your ability to fully perform all your duties and responsibilities for Pancare Foundation, including physical or psychological limitations or limitations arising from any prior employment.
8.2 Your further agree that you will not breach continuing obligations arising from any prior employment in the performance of your duties and responsibilities for Pancare Foundation, including, but not limited to, confidentiality obligations. You understand that any breach of these obligations will constitute grounds for immediate termination of your employment.
8.3 Your specific performance objectives have been established in Schedule 1, attached.
8.4 The CEO will review your performance prior to the cessation of your employment. If this performance review is satisfactory then by and subject to mutual agreement, your employment with Pancare may continue.
8.5 You shall perform your responsibilities and duties in a proper and efficient manner.
8.6 Except in the case of absence by reason of ill health, incapacity, accident or approved leave, you shall devote the whole of your time, attention and abilities during work hours and such other hours as are necessary for you to perform your duties in a satisfactory manner, exclusively to the business of Pancare Foundation.
8.7 Pancare may direct your to not attend work and not to undertake any of your work duties at any time, provided that Pancare provides you with payment at your ordinary rate of pay during the period of suspension.
8.8 The circumstances in which Pancare may give your such a direction include, but are not limited to, circumstances in which Pancare is carrying out an investigation into allegations of misconduct.
8.9 During your employment with Pancare Foundation, you must not deal with any assets, supplies, money, credits or other effects belonging or which are owing to Pancare or its clients for your own use or benefit.
9. EMPLOYMENT POLICIES AND PROCEDURES
9.1 You are directed to read and comply with the obligations imposed upon you by Pancare’s policies and procedures as they relate to your employment. These policies and procedures may be varied from time to time, and you are directed to comply with such variations. Such policies and procedures do not form part of your Contract of employment.
10. PANCARE PROPERTY
10.1 All documents, plans, papers, computer disks, lists, diaries, books, registers, memoranda, manuals or records of any kind relating to the business of Pancare (whether prepared by you or not) are and remain the property of Pancare Foundation.
10.2 No materials, tools or equipment of any description may be borrowed or removed from the premises without the prior consent of Pancare Foundation.
10.3 All documents, materials and equipment of Pancare in your possession must be surrendered upon demand or upon termination of employment.
10.4 Final termination payment will be withheld until all property is returned to the satisfaction of Pancare Foundation.
11. DRUGS, ALCOHOL AND SMOKING
11.1 You must not commence work while under the influence [of] alcohol or illegal drugs or consume alcohol or illegal drugs while working.
11.2 In the interests of the health and safety of all employees of Pancare promotes a smoke free environment. Smoking is prohibited within all enclosed buildings.
12. TERMINATION OF EMPLOYMENT
12.1 Either you or Pancare may terminate your employment by giving the period of notice set out in the table below. Pancare may pay you in lieu of all or part of such notice.
Period of continuous service | Period of notice |
Not more than 1 year | 1 week |
More than 1 year but not more than 3 years | 2 weeks |
More than 3 years but not more than 5 years | 3 weeks |
More than 5 years | 4 weeks |
12.2 In addition to this notice, if you are over 45 years of age and have completed at least 2 years of continuous service with Pancare at the time of termination, Pancare will give you an additional week’s notice or payment in lieu of notice.
12.3 Pancare may terminate your employment at any time without notice or payment in lieu of notice in the case of serious misconduct. Serious misconduct will include, but is not limited to:
12.3.1 breach of your obligations as set out in this Contract;
12.3.2 breach of your obligations under Pancare’s policies and procedures;
12.3.3 performing your work in a manner reasonably considered by the Pancare to be unprofessional;
12.3.4 engaging in conduct which Pancare reasonably considers is likely to damage Pancare’s reputation; or
12.3.5 committing any act of dishonesty such as embezzlement, theft or fraud involving Pancare’s assets or property.
12.4 Upon termination of your employment any sums which may be owed by you to Pancare must be repaid by you.
12.5 If you are absent from your place of work for a continuous period of three working days, without a satisfactory explanation or the consent of Pancare, you shall be deemed to have abandoned your employment. Under these circumstances you are not entitled to sick leave entitlements or payment of notice.
12.6 Immediately upon resignation or termination of your employment for any reason, you must return to Pancare all property belonging to Pancare in your possession or control, including, but not limited to, mobile phone, computers, keys, disks, cards, documents, diaries, records and materials developed by you during employment with Pancare.”
[27] During the hearing, I put to Mr Hawkins that Ms Fanizza’s relationship with the Respondent could not be characterised as other than that of an employee. Mr Hawkins accepted that Ms Fanizza was engaged as an employee. 43
[28] The situation with Ms McMahon is less clear cut. Ms McMahon was an employee of the Respondent up until 6 December 2019. She then entered into what she describes as a “short term contract for six weeks as a sole trader” commencing 9 March 2020. 44 The terms of the contract with Ms McMahon were included in the materials. That contract, in contrast to that of Ms Fanizza, is more consistent with that of a contractor relationship. Mr Hawkins gave evidence that:
• Ms McMahon used to be an employee of the Respondent but left in December 2019;
• Ms McMahon was re-engaged on a short-term basis as a freelance contractor with an ABN and began invoicing the Respondent;
• Ms McMahon reports directly to Mr Hawkins, who informs her of the work required;
• Ms McMahon advises Mr Hawkins about the nature of work she is able to perform, and Mr Hawkins essentially approves or reviews the work that she submits;
• Ms McMahon works remotely from Western Australia;
• Mr Hawkins believes that Ms McMahon has clients besides the Respondent;
• Mr Hawkins believes that Ms McMahon may be able to delegate some of her work to others; and
• The Respondent supplies no tools or equipment to Ms McMahon. 45
[29] There is no evidence from Ms McMahon herself. Ultimately it is not clear as to the nature of the relationship, and I do not need to determine whether or not Ms McMahon is an employee.
[30] As to Mr Hawkins himself, he included himself in the list of employees that was filed. 46 However, Mr Hawkins then altered that position saying that he was at the relevant time an interim CEO under a contractor arrangement through his company called Sales Hub Pty Ltd.47 That this arrangement was in place from the commencement of Mr Hawkins as interim CEO until “early to mid April” 2020 at which point he became an employee of the Respondent.48 Other than the evidence given at the hearing by Mr Hawkins, which was difficult to follow on this point, there was no evidence other than a bank statement showing that on 18 February 2020 there was an amount of money paid into an account called ”SALES HUB PTY LTD”.49 Mr Hawkins evidence is that was his company. The evidence of Mr Hawkins that he was at first in a contractor relationship and then an employee relationship, based on little more than one period him being an “interim” CEO and then a permanent CEO is, without anything more, unlikely to ground a finding that Mr Hawkins was in fact a contractor at the relevant time. I note that Mr Hawkins indicated that he could provide further evidence to support his contention. However, given my findings in regard to Ms Roberts above, that was not necessary. It is entirely possible that the additional evidence alluded to by Mr Hawkins could support a finding that he was in fact a contractor at the relevant time.
[31] Finally, I make the observation with respect to the Applicant’s purported period of employment as a contractor. It would appear that it is more likely than not that she was an employee during the period 29 April 2019 to 17 March 2020 as she asserts. Beyond the relationship being one that the parties have at least on some level, sought to characterise as a contractor relationship during that period, there is little else that would support a finding that it was, and a great deal more to support a finding that it was not. In particular, the terms of the contract between the parties for the period 29 April 2019 to 4 August 2019 is as follows:
“Dear Julie,
OFFER OF EMPLOYMENT: Bookkeeper/Office Manager
I am pleased to offer you employment with PANCARE Foundation (PANCARE) as Bookkeeper/Office Manager. The contract is for an initial nine weeks but with the opportunity to move to a 12-month contract as Bookkeeper with PANCARE at the start of the new financial year.
1. COMMENCEMENT
1.1 Your contract with PANCARE begins week commencing Monday 29th April 2019
2. POSITION & HOURS
2.1 Your position is Bookkeeper/Office Manager to assist with the office move and end of financial year processing.
2.2 You are contacted for 15 hours per week for nine weeks from Monday 29th April to Friday 28th June 2019.
2.3 Your duties and responsibilities will be set out by the Director, Fundraising & Development. You are required to carry out the duties reasonably required by PANCARE that you are skilled and capable of performing.
3. REMUNERATION
3.1 Your remuneration is $40.00 per hour and you will supply PANCARE with you ABN. PANCARE will pay you fortnightly with the first pay period starting from Monday 29th April – Friday 10th May.
3.2 Your salary will be paid by Thursday of each fortnight, or nearest business day, into the bank account of your choice.
3.4 Your salary and other employment conditions are confidential and must not be discussed with other employees of PANCARE.
3.5 Other expenses such as mileage or reimbursement for any meetings is to be paid separately using PANCARE expenses form.
4. REPORTING
4.1 You will report to the Director, Fundraising & Development at PANCARE.
4.2 The Director, Fundraising & Development is your primary point of contact unless agreement is reached otherwise. At times, the CEO may also direct your work in relation to the office move.
5. CONFIDENTIAL INFORMATION
5.1 In this Contract, Confidential Information means any information belonging to or concerning the operations or affairs of PANCARE or its clients which is not in the public domain and which you become aware of in the course of your employment, including but not limited to financial and operational information, marketing and strategic plans, patients and carers information (Confidential Information).
5.2 You must not, during your employment or after completion of your contract, directly or indirectly use or disclose any Confidential Information for any unauthorised purpose.
5.3 You must ensure secure custody of Confidential Information in your control or possession and use your best endeavours to prevent the use or disclosure of Confidential Information for any unauthorised purpose.
5.5 If you are uncertain about whether information is Confidential Information, you must ask PANCARE. Until you receive an answer, you must treat that information as confidential.
6. INTELLECTUAL PROPERTY
6.1 Any and all literary works, reports, studies, inventions, designs, trademarks, methods, processes, or other material or data whatsoever (Works), developed or created by you (whether solely or jointly with others) in the course of or arising from your contract with PANCARE is the property of PANCARE and PANCARE shall have full rights to such Works whether those rights are exercised in any form or not during your employment.
7. GENERAL
7.1 Any amendment or addition to this Agreement must be in writing and signed by both parties.
7.2 This Agreement is governed by the laws of the state of Victoria.
7.4 Please sign this Agreement to acknowledge that you accept PANCARE’s offer of employment on the terms and conditions set out in this Contract.
We look forward to you working with us.
Yours sincerely,
Tami McMahon
Director, Fundraising & Development”
[32] Beyond the requirement for the Applicant to provide an ABN virtually, every aspect of this document supports a finding that there was an employment relationship rather than a contractor relationship.
[33] I intend to refer these matters to the Fair Work Ombudsman for their consideration.
Conclusion
[34] Having considered all of the evidence in respect to Ms Roberts, I am satisfied that she was not an employee at the relevant time for the reasons set out. Accordingly, there was less than 15 employees employed by the Respondent at the relevant time. Therefore, I am satisfied that the Respondent was a small business at the time of the dismissal.
[35] I am also satisfied that the Applicant had completed a period of continuous service immediately prior to the date the dismissal took effect of more than six months but less than 12 months.
[36] As the Respondent was a small business at the time of the dismissal, the Applicant has not completed the minimum employment period.
[37] The jurisdictional objection is therefore upheld and the application for unfair dismissal remedy is dismissed.
[38] An order dismissing the application will be issued concurrently with this decision.
COMMISSIONER
Appearances:
Ms J. Whiteside on her own behalf
Mr D. Hawkins for the Respondent
Hearing details:
29 May 2020
Printed by authority of the Commonwealth Government Printer
<PR719775>
1 Background document sent from the Fair Work Commission dated 29 May 2020.
2 [2019] FWC 93.
3 Stevens v Brodribb Sawmilling Co Proprietary Limited (1986) 160 CLR 16 at 24 per Mason J.
4 ACE Insurance Limited v Trifunovski [2013] FCAFC 3; (2013) 209 FCR 146 at [26]-[27] per Buchanan J.
5 [2011] FWAFB 8307.
6 [2011] FWAFB 8307.
7 Ibid at [30].
8 Court book, page 300.
9 PN205-PN207.
10 Court Book, page 303; PN220.
11 Court Book, page 303; PN220 – PN222
12 Court Book, page 304; PN220 – PN222
13 PN183 – PN187.
14 Court book, page 301.
15 PN189.
16 Court book, page 300.
17 Court book, pages 305 – 306.
18 Court book, page 300.
19 PN228-PN233.
20 PN239 – PN240; PN269 - PN276
21 PN 239 - PN241.
22 [2019] FWC 93.
23 Hollis v Vabu Pty Limited [2001] HCA 44; (2001) 207 CLR 21 at [24].
24 Ibid at [40]; Marshall v Whittaker’s Building Supply Co [1963] HCA 26; (1963) 109 CLR 210 at 217 per Windeyer J; Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37; (2015) 228 FCR 346 at [177] per North and Bromberg JJ
25 [2015] FCAFC 37; (2015) 228 FCR 346 at [178]
26 [1986] HCA 1; (1986) 160 CLR 16
27 Ibid at [35]
28 Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37; (2015) 228 FCR 346 at [178]; On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) (2011) 214 FCR 82 at [207] (Bromberg J); to similar effect in ACE Insurance Ltd v Trifunovski [2011] FCA 1204; (2011) 200 FCR 532 at [29] (Perram J); and on appeal ACE Insurance Ltd v Trifunovski [2013] FCAFC 3; (2013) 209 FCR 146 at [93] and [102] (Buchanan J, with whom Lander and Robertson JJ agreed).
29 Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37; (2015) 228 FCR 346 at [181]
30 (2011) 214 FCR 82 at [207]
31 Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd & Anor [2005] HCA 9at [39]; Hope v Bathurst City Council (1980) 144 CLR 1at 9; Roy Morgan ResearchPty Ltd v Commissioner of Taxation [2010] FCAFC 52; (2010) 184 FCR 448 at [47]; Yaraka Holdings Pty Limited v Giljevic [2006] ACTCA 6; (2006) 149 IR 339at [41] and [49]; City of Montreal v Montreal Locomotive Works Ltd [1947] 1 DLR 161 at 169; Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173 at 184; Lee Ting Sang v Chung Chi-Keung [1990] 2 AC 374 at 382.
32 Hope v Bathurst City Council (1980) 144 CLR 1at 9; Hungier v Grace (1972) 127 CLR 210 at 216–217; Puzey v Commissioner of Taxation [2003] FCAFC 197at [48]; Commissioner of Taxation v Sleight [2004] FCAFC 94; (2004) 136 FCR 211 at [48].
33 Stevens v Brodribb Sawmilling Company Proprietary Limited (1986) 160 CLR 16at 26 and 38..
34 Hollis v Vabu Pty Limited [2001] HCA 44; (2001) 207 CLR 21 at [48]; Stevens v Brodribb Sawmilling Company Proprietary Limited (1986) 160 CLR 16 at 37; Roy Morgan ResearchPty Ltd v Commissioner of Taxation [2010] FCAFC 52; (2010) 184 FCR 448 at [46]; Re Porter; Re Transport Workers Union [1989] FCA 226; (1989) 34 IR 179 at 186..
35 Hope v Bathurst City Council (1980) 144 CLR 1 at 9; Abdalla v Viewdaze Pty Ltd (2003) 122 IR 215at [35]; Yaraka Holdings Pty Limited v Giljevic [2006] ACTCA 6; (2006) 149 IR 339at [35].
36 Stevens v BrodribbSawmilling Company Proprietary Limited (1986) 160 CLR 16at 37; Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd & Anor [2005] HCA 9at [39]..
37 Hollis v Vabu Pty Limited [2001] HCA 44; (2001) 207 CLR 21at [54]; Sweeneyv Boylan Nominees Pty Ltd [2006] HCA 19; (2006) 226 CLR 161at [31]; Hope v Bathurst City Council (1980) 144 CLR 1at 9; Wesfarmers Federation Insurance Ltd v Wells [2008] NSWCA 186 at [42]; Ferguson v Federal Commissioner of Taxation [1979] FCA 51 at 311..
38 Hollis v Vabu Pty Limited [2001] HCA 44; (2001) 207 CLR 21at [48]; Stevens v BrodribbSawmilling Company Proprietary Limited (1986) 160 CLR 16at 36–37; Yaraka Holdings Pty Limited v Giljevic [2006] ACTCA 6; (2006) 149 IR 339at [51].
39 Wesfarmers Federation Insurance Ltd v Wells [2008] NSWCA 186 at[39] – [42].
40 [2003] AIRC; (2003) 127 IR 205.
41 [2017] FWCFB 3541.
42 Court book, page 306.
43 PN294-PN305.
44 Court book, pages 216-218.
45 PN306-PN350.
46 Court book, page 43.
47 PN144-PN150.
48 PN351 – PN364
49 Court book, page 296.
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