Kashmir Bryar v JBA Consulting Engineers Pty Ltd

[2024] FWC 1760

[2024] FWC 1760

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Kashmir Bryar
v

JBA Consulting Engineers Pty Ltd

(C2024/3473)

DEPUTY PRESIDENT COLMAN MELBOURNE, 4 JULY 2024

Application under s 365 – applicant not an employee, not dismissed – application dismissed

1. The following is an edited version of a decision given on transcript today to which I have added an introduction and a brief summary of argument. Kashmir Bryar has made an application under s 365 of the Fair Work Act 2009 (Act). The respondent, JBA Consulting Engineers Pty Ltd (JBA), objects to the application on the ground that Mr Bryar was not an employee and was therefore not dismissed.

1. Mr Bryar submitted that he commenced working for JBA as an employee in 2005 and that over the years he performed various duties and work for the benefit of the company, including more recently as the hydraulics lead, as a senior engineer, and as a salesperson. Mr Bryar said that although there was no written contract of employment between him and the company, such a contract was implied by fact. In mid-2023 a dispute arose between Mr Bryar and the other two directors, his mother and brother. Around this time he indicated to the company that he considered himself to be an employee. In February 2024, Mr Bryar wrote to them and requested payment of wages for his many years of work as an employee, in the amount of some 11 million dollars. This was refused. On 28 May 2024, the board removed Mr Bryar as a director. It also directed him not to attend company premises or to contact its staff or customers.

1. JBA acknowledged that from 2005 to 2010 Mr Bryar was an employee but said that in 2010 he became a director and the employment ended. The company submitted that Mr Bryar  then performed work for the company as a director, and that he received payment for this work, and distributions of profits. It said that he chose how actively he was involved in the company. It was only when a dispute arose between Mr Bryar and the other directors in 2024 that he claimed to be an employee of the company. JBA submitted that as a director, Mr Bryar was part of the controlling mind of the company, and that each year he signed off on financial statements that made no reference to his being an employee.

1. Based on the information presented to the Commission in this matter, I find that Mr Bryar was not an employee of JBA at the relevant time. It is implausible that if he had regarded himself as an employee between 2010 and 2024, he would have worked for the company without claiming wages or employee entitlements until 2024. The fact that he performed work for the benefit of the company is not indicative of an employment relationship. Work can be done in a variety of capacities. Officeholders of private companies often perform work for the benefit of their company without being employees. The information before the Commission does not bear out the existence of a contract of employment on terms implied by fact. I find that Mr Bryar was an officeholder of the company and that he was removed from office by the board in May 2024. But he was not dismissed because he was not an employee at that time (see s 386 of the Act). As Mr Bryar was not dismissed, the Commission has no jurisdiction to deal with this matter.

1. The application is dismissed.

DEPUTY PRESIDENT

Appearances:

P. Kelly for the applicant
A. Baker for the respondent

Hearing details:

2024
Melbourne (by telephone)
4 July  

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