DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Karen Bailey
v
Spangaro (No 1) Pty Ltd
(U2019/1404)

DEPUTY PRESIDENT BEAUMONT

PERTH, 30 JULY 2019

Unfair dismissal - jurisdictional objection - whether worker was an independent contractor or an employee - jurisdictional objection upheld - application dismissed.

[1] On 11 February 2019, Ms Karen Bailey (Ms Bailey) made an application to the Fair Work Commission (the Commission) for a remedy in respect of her dismissal from Spangaro (No 1) Pty Ltd (Spangaro).

[2] A preliminary issue in this matter is whether Ms Bailey was an employee of Spangaro. If she was then the Commission can proceed to determine her application. If she was not, then the application would be beyond the jurisdiction of the Commission and would have to be dismissed.

[3] In short, I am satisfied that the evidence supports a conclusion that the arrangement between Spangaro and Ms Bailey was an independent contracting arrangement. On balance, the totality of the evidence concerning the various indicia points to Ms Bailey conducting a business of her own and not being a servant of Spangaro. Therefore, the application is dismissed. My reasons for this decision follow.

Background

[4] Ms Bailey gave evidence that in January 2015 she began looking for a job due to a downturn in her husband’s earthmoving business, Grading Services Australia Pty Ltd (GSA). 1 Her role in GSA was to look after the administration side of the business, and she was one of its directors.2 Ms Bailey worked between five to 10 hours a week on the administration side of this business.

[5] Ms Bailey responded to an advert in the local Geraldton newspaper for a part-time Hotel Manager. Mr John Spangaro, the proprietor of the Como Apartments, an accommodation facility in Geraldton, interviewed her. She was later informed that the job was hers. 3

[6] Como Apartments Geraldton has two properties in Geraldton. One consists of eight apartments on Fitzgerald Street, and the other, three apartments on James Street. 4 There is no office at either property and only the Fitzgerald Street property has large lockable cupboards in which the guest laundry is kept along with all the cleaning and administration supplies.

[7] Ms Bailey stated that she did not ask to be an independent contractor but as she needed the job, and the management work was very mobile (there was no office at the Apartments), she took the job. 5 Ms Bailey said that Mr Spangaro informed her that she required an ‘ABN’ to enable her to be paid. Ms Bailey mentioned to Mr Spangaro that she had a family business, GSA, and that had an ABN.6 According to Ms Bailey, Mr Spangaro was said to have informed her ‘that would be fine’.7

[8] Mr Spangaro gave evidence that when interviewing Ms Bailey he explained the position was a contract position. 8 He said that she expressed to him that this was not a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FWC 4359
Decision Date: 30 JULY 2019

CaseChat Overview and Summary

In the Federal Circuit Court, Karen Bailey sought a remedy for an unfair dismissal against Spangaro (No 1) Pty Ltd. Bailey alleged that she was dismissed without just cause or reason, as required under the Fair Work Act 2009. Spangaro (No 1) Pty Ltd contested the claim by asserting that Bailey was not an employee, but rather an independent contractor. This characterisation of her employment status meant that the Court lacked jurisdiction to hear the unfair dismissal claim.

The central issue before the Court was whether Bailey was an employee or an independent contractor. The determination hinged on the application of the multi-factor test as outlined in the traditional common law tests, focusing on the nature of the relationship, control, and economic reality. The Court needed to assess the evidence presented by both parties to ascertain the true nature of Bailey's working relationship with Spangaro (No 1) Pty Ltd.

After examining the evidence, the Court concluded that Bailey was an independent contractor rather than an employee. The Court found that the relationship did not exhibit the hallmarks of an employment relationship, such as a significant degree of control or the provision of benefits typically associated with employment. Consequently, the Court held that it did not have jurisdiction to entertain the unfair dismissal claim. As a result, the Court dismissed Bailey's application.

Orders