Kimberley Fraser v Tarantino Investments Pty Ltd
[2022] FWC 83
•3 FEBRUARY 2022
| [2022] FWC 83 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s. 394—Unfair dismissal
Kimberley Fraser
v
Tarantino Investments Pty Ltd
(U2021/10296)
| COMMISSIONER MIRABELLA | MELBOURNE, 3 FEBRUARY 2022 |
Application for an unfair dismissal remedy – jurisdictional objection – minimum employment period – small business.
On 16 November 2021, Ms Kimberley Fraser filed an application for an unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (the Act) in the Fair Work Commission (the Commission) against Tarantino Investments Pty Ltd (Tarantino Investments).
Ms Fraser seeks the opportunity to establish that her dismissal was unfair so that she can obtain a remedy of compensation.
To have that opportunity she must have completed the minimum period of employment as an employee of Tarantino Investments. The relevant period is 12 months for employees of small business employers and 6 months for those employed by employers with 15 or more employees.[1] If Tarantino Investments was a small business employer at the time of her dismissal, Ms Fraser cannot bring her claim.
There is no dispute that Tarantino Investments had at least 14 employees at the relevant time. Ms Fraser initially submitted that, because Mr Satinder Sidhu and Mr Jitender Sandhu are also employees of the business, the total number of employees was 16. Tarantino Investments did not agree.
This matter was allocated to me on 2 December 2021. I issued directions for the filing and service of material and then conducted a determinative conference on 22 December 2021 via Microsoft Teams.
Background
Tarantino Investments operates a logistics business assisting customers with import and export of their products from their premises operating packaging point to shipping ports.
It is not in dispute that Ms Fraser commenced employment by Tarantino Investments in the position of Operations Planner/Manager on 8 February 2021. Ms Fraser was dismissed on 5 November 2021 by Tarantino Investments. Tarantino Investments alleges that she was dismissed because of ongoing disrespectful behaviour in the workplace.
Mr Sidhu was engaged by Tarantino Investments to provide the company with two different services, one being the provision of trucks and drivers and the second being fleet management services. Tarantino Investments says that Mr Sidhu did not give instructions to any of its employees and that he only gave instructions to contractors because Tarantino Investments only engages contractor drivers. Ms Fraser says that Mr Sidhu was an employee at the time of her dismissal by virtue of his position as Fleet Supervisor for Tarantino Investments.
It is evident from the material filed by the parties that Mr Sidhu uses different spellings for his last name. He refers to himself as “Satinder Sidhu” on his LinkedIn profile and “Satinder Sidhau” in the invoices he issues to Tarantino Investments. There is, however, no confusion about the identity of Mr Sidhu/Sidhau and no issues were raised by Tarantino Investments about the inconsistent spelling. Ms Fraser and Mr Sidhu both use “Sidhu” and this spelling will be used in this decision.
Mr Sandhu was engaged by the company at the relevant time to perform mechanical services for the company. Ms Fraser initially submitted that Mr Sandhu was employed as the Assistant of Mr Keenan Murphy, another employee of Tarantino Investments. At the hearing, the Commission was informed that Ms Fraser conceded there was “a higher bar” to prove Mr Sandhu was an employee and, as a consequence, the examination of witnesses would be limited to matters relating to Mr. Sidhu only.[2]
The evidence submitted in support of Mr Sandhu being an employee of Tarantino Investments was:
“Both Satinder Sidhu and Jitender Sandhu were direct employees of the business on the day [Ms Fraser’s] employment was terminated (being 5 November 2021).”[3]
On the available evidence, I cannot find that Mr Sandhu was an employee of Tarantino Investments.
Was Mr Sidhu an employee of Tarantino Investments at the time of Ms Fraser’s dismissal?
Determiningwhether a person is an employee or an independent contractor requires the application of multifactorial tests established through the Courts and recently confirmed in Kimber v Western Auger Drilling Pty Ltd (Kimber).[4]In Kimber, the Full Bench endorsed the approach in French Accent v Do Rozario,[5] which had regard to the earlier Full Bench matter of Abdalla v Viewdaze Pty Ltd t/a Malta Travel[6] and followed the principles laid out by the High Court in Stevens v Brodribb Sawmilling Co Pty Ltd[7] and Hollis v Vabu.[8]
I adopt and apply the approach confirmed in Kimber for the purposes of this decision. Ultimately, it comes down to whether, in the relevant period, Mr Sidhu was the servant of Tarantino Investments in its business or was carrying on a business on his own behalf.
Factors suggesting Mr Sidhu is an employee
Control: Although Tarantino Investments says that Mr Sidhu had control over how he delivered his services to the company,[9] Mr Sidhu did not have complete autonomy in the provision of his fleet management services to Tarantino Investments.
Mr Sidhu would commence the provision of fleet management services at the Respondent’s premises sometime between 4:30am and 5:30am, 5 days per week. Mr Sidhu would work through until the workload of the day was completed;[10] that is, sometime between 2:00pm and 4:30pm.
In so far as Mr Sidhu’s hours are determined by the workload at Tarantino Investments’ workplace, he is bound by those requirements.
On the evidence before the Commission, I find that Tarantino Investments had control over Mr Sidhu’s work in that they controlled the premises in which he provided his services and the time parameters within which he needed to provide and complete his services on a daily basis.
Emanation of the business: In describing his relationship to the business, Mr Sidhu describes himself in his LinkedIn profile as “Fleet Supervisor at Paddocktoport”. Paddock to Port is a trading name for Tarantino Investments. Mr Sidhu holds himself out to the world at large as a representative of Tarantino Investments’ business.
Delegation and subcontracting: When Mr Sidhu had been unable to perform the tasks of fleet management for Tarantino Investments, the owner Mr Beaumont stepped in to perform those tasks that would otherwise have been performed by Mr Sidhu. Furthermore, in lieu of himself, Mr Sidhu had never delegated the work of fleet management to anyone else.
Tools of trade and business expenses: Tarantino Investments provided Mr Sidhu with a company computer and keyboard. In performing the tasks of management of a fleet of trucks, these can be considered “tools of trade”. No evidence was adduced that Mr Sidhu brought any equipment or tools with him in performing fleet management services.
Place of work and advertising own services: Mr Sidhu works onsite at the Respondent’s business premises. No evidence was adduced that Mr Sidhu advertises his fleet management services.
Factors suggesting Mr Sidhu is not an employee
Work for others: Tarantino Investments gave evidence that Mr Sidhu was permitted to work for other entities.[11] The undisputed evidence is also that, in providing fleet management services, he worked in excess of 40 hours a week for Tarantino Investments, commencing at approximately 5:30am and working between 8.5 to 11 hours a day, 5 days a week.
Mr Beaumont gave evidence that, since November 2020, Mr Sidhu performed fleet management services for one other business but could not confirm the length of that engagement and whether it was still ongoing. He confirmed that during that time Mr Sidhu has never been unavailable to provide services to Tarantino Investments.
Remuneration and income tax: Mr Sidhu does not draw a regular wage or salary and does not declare PAYG income. Instead, he is remunerated by Ozpro Pty Ltd (Ozpro) invoicing Tarantino Investments on a weekly basis. The description of the invoice is “Satinder Sidhau for the week ending (date) Fleet Services”.
Leave: Mr Sidhu is not paid any annual or personal leave entitlements.
Neutral criteria
Goodwill: Mr Sidhu spends well in excess of 40 hours a week providing fleet management services for Tarantino Investments. No evidence was adduced that in the provision of these services, Mr Sidhu was building the goodwill of either Tarantino Investments or Ozpro.
Distinct profession, trade or calling: On the available evidence, I am unable to determine if Mr Sidhu was engaged in a distinct profession, trade or calling such that he would tend to be a contractor rather than an employee.
Right to suspend or dismiss: There is no written contract between Tarantino Investments and Mr Sidhu or Ozpro. Any contracts were made orally.
On the evidence, the details of any contractual provisions relating to suspension, dismissal or termination of the contract are unclear.
Conclusion
Some of the facts in this case tend in favour of an employment relationship and some do not. As a practical matter, Mr Sidhu provides services to Tarantino Investments at its premises on a weekly basis for over 40 hours a week managing the fleet of trucks that Tarantino Investments uses in its business operation. He has never delegated his fleet management tasks to anyone else and advertises himself as the Fleet Supervisor for Tarantino Investments.
Mr Sidhu has worked for another business, does not draw a salary from Tarantino Investments and is not paid any leave entitlements.
On balance, I find that there is an employment relationship between Mr Sidhu and Tarantino Investments and that it was in existence at the time of Ms Fraser’s dismissal.
Result and disposition
The result is that Tarantino Investments had 15 employees at the time of the dismissal. It was not a small business employer. Ms Fraser has completed the minimum employment period of 6 months and can bring this claim.
The matter will be referred for conciliation.
COMMISSIONER
Appearances:
Mr D. Bates for Ms Fraser.
Ms A. Gonos for Tarantino Investments.
Hearing details:
2021
Melbourne (video using Microsoft Teams)
22 December.
[1] Fair Work Act 2009 (Cth) s. 383, s. 23.
[2] Transcript at PN37.
[3] Exhibit A3, paragraph 10.
[4] Kimber v Western Auger Drilling Pty Ltd [2015] FWCFB 3704.
[5] French Accent v Do Rozario [2011] FWAFB 8307.
[6] Abdalla v Viewdaze Pty Ltd t/a Malta Travel (2003) 122 IR 215.
[7] Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16.
[8] Hollis v Vabu (2001) 207 CLR 21.
[9] Exhibit R3, paragraph 21.
[10] Transcript at PN187.
[11] Exhibit R3, paragraph 21.
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