Khalid Qureshi v Extragreen Holidays (Aust) Pty Ltd

[2018] FWC 3939

[2018] FWC 3939

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Khalid Qureshi
v
Extragreen Holidays (Aust) Pty Ltd
(U2018/2990)

COMMISSIONER GREGORY MELBOURNE, 3 JULY 2018

Application for relief from unfair dismissal – jurisdictional objection – not an employee – independent contractor – applicant held to be an employee – application to be relisted to determine merits.

Introduction

[1] This decision deals with an unfair dismissal application made by Mr Khalid Qureshi. Mr Qureshi claims that he originally worked for a business known as Melbourne’s Best Tours from January 2010 as a Coach Driver. However, that business was taken over by another business known as Extragreen Holidays (Aust) Pty Ltd (“Extragreen”) in March 2013. Mr Qureshi claims that he then continued working for Extragreen until his employment was terminated in March of this year.

[2] Mr Qureshi subsequently lodged an unfair dismissal application, however, Extragreen raised a jurisdictional objection in response based on the view that its relationship with Mr Qureshi was one of principal and independent contractor, rather than employer and employee.

[3] This decision accordingly deals with that jurisdictional objection. It is also noted that the Commission handed down a decision in transcript dismissing the jurisdictional objection on the basis that the evidence and submissions before the Commission appeared to indicate that Mr Qureshi was in an employment relationship, rather than one of principal and independent contractor. This decision provides a confirmation of the decision handed down in transcript.

[4] Mr Qureshi appeared on his own behalf. Ms Sophia Wong, the Personal Assistant to the Managing Director, appeared on behalf of Extragreen. The Commission also notes that both parties provided only limited submissions and evidence in the proceedings, and the hearing proceeded, in large part, by the parties providing answers to questions raised by the Commission.

[5] The Commission also indicated at the conclusion of the proceedings that the submissions and evidence provided by the parties had not directly addressed the considerations in s.387 of the Fair Work Act 2009 (Cth) (“the Act”) that the Commission is required to take account of in determining an unfair dismissal application. The Commission accordingly suggested to the parties that the proceedings be adjourned to enable them to have further time in which to provide submissions and evidence about these considerations. Both parties indicated that they had no objection to this course of action. Mr Qureshi’s application will accordingly be relisted shortly to enable his substantive unfair dismissal claim to be heard and determined.

The Issue to be Determined

[6] Section 382 of the Act deals with when a person is protected from unfair dismissal. It states in part:

“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” 1

[7] Therefore, if a person is not an employee, they cannot be a person protected from unfair dismissal and are not able to pursue unfair dismissal application. Mr Qureshi submits that when the totality of his relationship with Extragreen is considered he was an employee and not an independent contractor. Extragreen rejects this submission and submits that during the period from 1 March 2013 to 28 February 2018 Mr Qureshi was engaged as a Coach Driver in the capacity of an independent contractor.

[8] The Commission is accordingly required to determine whether Mr Qureshi was employed by Extragreen as an employee, or whether he was engaged to provide services to it as an independent contractor.

The Respondent’s Evidence and Submissions

[9] Extragreen provided written submissions and attached some additional documentation. It initially indicated that it relied upon those materials and did not seek to provide any further submissions or evidence in support of the jurisdictional objection. Its written submissions indicated that, “Melbourne Best Tours was bought over from Peter Hemming in March 2013 by Extragreen Holidays (Aust) Pty Ltd. Khalid continued driving as a contractor for Melbourne Best Tours from March 2013.” 2

[10] It also made reference in response to a question from the Commission to an invoice in the materials it provided. 3 It was indicated to have been received from Pacific Japan Cars4 and was dated 5 March 2013.5 Extragreen submits this was the last invoice received from Mr Qureshi.6 It contains an ABN number and Extragreen submits that Mr Qureshi provided similar invoices to the business on a weekly basis7 and would then be reimbursed for the invoiced amount. He had been paid in this way during the past five years. It also explained that the invoice sets out the date on which the work was performed and the tour that was undertaken on that day, together with the hours that were worked on each day. Mr Qureshi was then paid on the basis of an hourly rate depending on the number of hours worked. It was also indicated that it was his responsibility to account for his taxation obligations, and no income tax was deducted by the business from the payments made to him.8 It was also indicated that he was paid $24 per hour, plus GST, making a total of $26.409

[11] Extragreen also indicated in response to a question from the Commission that Mr Qureshi would receive a text message from the business on the previous day “assigning him a coach and what about he’s doing.” 10 He was also entitled to advise that he was not available for work if he wished, although he often worked on up to 6 days a week. It was also indicated that, “Everything depends on his availability. So, he is not on a fixed roster.”11 It also submitted that he was free to work for other tour operators if he chose to do so.

[12] Extragreen accordingly relies on the basis of these arrangements to submit that Mr Qureshi was an independent contractor providing services to the business, rather than being an employee of the business.

The Applicant’s Submissions and Evidence

[13] Mr Qureshi also provided a written submission, which attached some additional documentation. He submits that in March 2013 he was informed by the owner of Melbourne’s Best Tours that the business had been acquired by Extragreen. He was subsequently interviewed by representatives from the new business, and a series of discussions took place about the salary arrangements that were to apply. He also attached copies of the following documents that were given to him at the time.

•  An “Employment Application Form” on Extragreen letterhead, which he signed on 28 February 2013. 12

•  A “New Bus Driver Induction Record,” which indicated he had “…. undergone a new employee Bus Driver Induction Course and have been informed/trained in the following: … “ 13 Both Mr Qureshi and the Trainer signed that document on 2 March 2013.

•  A further document on Extragreen letterhead entitled “Driver Extragreen Holidays Group,” which Mr Qureshi signed on 18 April 2013, indicating alongside his signature that “… I have read and understood the terms and conditions in relation to my position as driver for Extragreen Holidays Group.” 14

•  A document entitled “Position Description: bus driver,” which Mr Qureshi signed on 28 April 2013 indicating he had “… read and received instructions on the above Position Description and agree to abide by the responsibilities outlined.” 15

[14] Mr Qureshi also indicated in response to a question from the Commission that he had been presented with an agreement purporting to have him enter into an independent contractor relationship in 2015, but he had refused to sign that document. He also indicated that he considered himself to be in an employment relationship throughout the period of time that he worked with Extragreen. 16

[15] He also indicated that he often worked on average 6 days per week, 17 and it was not uncommon to work in excess of 15 hours per day commencing, for example, at around 6.30 a.m. in the morning and arriving back in Melbourne at around 10 p.m. in the evening. He also indicated that he was paid a flat amount of $24 per hour for all hours worked. His submissions also indicated that on one occasion he had worked for 15 days straight without having a day off.18 In addition, he did not receive paid annual leave or personal leave throughout the time he was engaged by Extragreen.19

[16] He was also engaged solely as a coach driver and was required to wear a company uniform during the time that he was at work. He also handed up a series of additional documents which were headed “Worksheet (01.03.2013–03.03.2018) Melbourne’s Best Tours”, 20 which he submits set out the hours of work that he performed for Extragreen on all of the days that he has worked with the business since 1 March 2013.

[17] He also indicated in response to a submission from Extragreen that he was at all times able to accept work with other tour companies, that he did not work for other tour companies, and was not aware that he was able to do so. 21 However, he also indicated that the amount of work he performed with Extragreen would have made it impossible for him, in any case, to have accepted work elsewhere.22

Consideration

[18] The relevant authorities have made clear that the approach to be adopted in determining whether a person is an employee or an independent contractor depends upon whether the person carries on a trade or business on his or her own behalf, or whether the person is the servant of another in that business. In addition, the nature of the work performed, and the manner in which it is performed, will be critical to this determination, and the parties cannot alter the true nature of their relationship by simply describing it in a different way.

[19] I am satisfied, in conclusion, that Mr Qureshi was in an employment relationship, rather than in a relationship of principal and independent contractor. In coming to this conclusion I have had particular regard to the documents that have been referred to by Mr Qureshi. These include an Employment Application Form on Extragreen letterhead, a New Bus Driver Induction Record, and what appears to be an employment contract with a position description attached that details his role as a bus driver. These documents were provided to Mr Qureshi and signed by him after the business was acquired by Extragreen.

[20] It is understood that Extragreen may have considered Mr Qureshi to be an independent contractor who provided services to the business, and that was how it described the nature of the relationship. It also expected that he be paid on the basis of providing invoices for which he was then reimbursed. However, I am not satisfied that when the nature of the relationship is examined in any detail that it can be considered in this way

[21] It appears that Mr Qureshi was simply providing his time and his labour. He had no control over the work that was given to him. He was simply required to drive a company vehicle to the destination allocated to him, he wore a company uniform, and he acted at all times at the direction of the business. He was also paid in a way that was typical of an employment relationship, with payment being related precisely to the number of hours worked.

Conclusion

[22] I am satisfied, in conclusion, that in all the circumstances of this matter the nature of the relationship between Mr Qureshi and Extragreen was one of employee and employer, rather than one of principal and independent contractor. I accordingly find that at the time he was dismissed Mr Qureshi was in accordance with s.382(a) of the Act, “… an employee who has completed a period of employment with his or her employer of at least the minimum employment period,” 23 and therefore he is a person who is “protected from unfair dismissal”.24

[23] In coming to this conclusion I am obviously not making any finding about the merits or otherwise of Mr Qureshi’s substantive unfair dismissal claim. The application will now be listed again to enable that matter to be heard and determined. As indicated at the outset the parties will shortly be issued with a Notice of Directions in regard to these further proceedings.

COMMISSIONER

Appearances:

K Qureshi on his own behalf.

S Wong on behalf of the Respondent.

Hearing details:

2018.

Melbourne:

July 2.

Printed by authority of the Commonwealth Government Printer

<PR608689>

 1   Fair Work Ac 2009 (Cth) s 382(a).

 2   Submissions of Respondent, filed 14 May 2018, p 1.

 3   Transcript, 2 July 2018, PN19.

 4   Ibid, PN21-PN22.

 5   Ibid, 2 July 2018, PN26.

 6   Ibid.

 7   Ibid, PN39.

 8   Ibid, PN61-PN62.

 9   Ibid, PN43-PN44.

 10   Ibid, PN52.

 11   Ibid, PN54.

 12   Submissions of Applicant, lodged 21 May 2018, Annexure A.

 13   Ibid, Annexure B.

 14   Ibid, Annexure C.

 15   Ibid, Annexure D.

 16   Transcript, 2 July 2018, PN85.

 17   Ibid, PN54.

 18   Submissions of Applicant, lodged 21 May 2018, p 2.

 19   Transcript, 2July 2018, PN121,

 20   Document handed up in proceedings, “Worksheet (01.03.2013 – 03.03.2018) Melbourne’s Best Tours”, 2 July 2018.

 21   Transcript, 2 July 2018, PN158-PN159.

 22   Ibid.

 23   Fair Work Act 2009 (Cth) s 382(a).

 24   Fair Work Act 2009 (Cth) s 382.