Kris Du Preez Meyer v Hikurangi Te Paa (Client)
[2025] FWC 672
•13 MARCH 2025
| [2025] FWC 672 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Kris Du Preez Meyer
v
Hikurangi Te Paa (Client)
(C2024/9547)
| COMMISSIONER REDFORD | MELBOURNE, 13 MARCH 2025 |
Application to deal with contraventions involving dismissal
On 23 December 2024 Mr Kris Du Preez Meyer filed an application pursuant to s 365 of the Fair Work Act 2009 (the Act) claiming he was dismissed in contravention of Part 3-1 of the Act. The application identified Mr Hikurangi Te Paa (Mr Te Paa) as Mr Meyer’s employer and Mr Te Paa is the named Respondent to this application.
Mr Meyer claims he was an employee of Mr Te Paa. It also appears that by implication, Mr Meyer claims Mr Te Paa is liable in respect to the contraventions he says occurred with respect to the dismissal of his employment.
Mr Te Paa is an individual suffering from a pronounced psychological disability. Mr Te Paa lives independently but requires significant care and support which he receives from his family and from professional support. Mr Te Paa is a recipient of NDIS funding.
Mr Meyer was Mr Te Paa’s carer. Mr Meyer was engaged between 12 August 2024 and 18 December 2024 to provide in home personal care and support to Mr Te Paa. The work involved domestic support, such as with respect to cooking, cleaning and home maintenance, shopping for food (according to Mr Te Paa’s preferences), accompanying Mr Te Paa on outings and a myriad of other duties associated with in home personal care work.
A significant, and in my view obvious, question arises as to whether an employment relationship existed between Mr Meyer and Mr Te Paa.
Mr Te Paa was assisted in this matter by his sisters, Ms Wai Te Awe Awe and Ms Hinengakau Karauria, both of whom hold a power of attorney in respect to Mr Te Paa.
I conducted a case management hearing with the parties on 13 February 2025. During the case management hearing, I observed that there appeared to be a question as to whether Mr Meyer had identified in his application the correct employer in respect of his dismissal and explained that the Commission is empowered to correct or amend an application to overcome such an error, if indeed it was an error. I said that in this matter I would be prepared to consider amending the application to correct the name of the Respondent if both parties agreed. I adjourned the case management conference to provide both parties with time to consider their position. When the case management hearing resumed, Mr Meyer confirmed that he insists Mr Te Paa was his employer and did not wish for the application to be amended to provide for a different named Respondent.
The position of Mr Te Paa, communicated to me through his sisters, was less clear. As this proceeding has evolved, this position has appeared to firm to the effect that it was asserted more clearly that Mr Te Paa was not Mr Meyer’s employer, and that Mr Meyer was otherwise engaged to perform the work he did.
It was not contended that Mr Meyer resigned his employment or was not dismissed within the meaning of the Act. His engagement did appear to have several of the trappings consistent with an independent contract. It however, appeared to be consistently asserted on behalf of Mr Te Paa that the engagement was one of employment albeit not by Mr Te Paa himself.
Despite this, I remained concerned as to the nature of the engagement; whether it was one of employment and who it was with.
I considered it necessary to conduct a hearing to get to the bottom of this controversy: to determine whether it was correct that Mr Tu Paa was Mr Meyer’s employer, or whether the nature of Mr Meyer’s engagement was of a different kind or with a different person.
With the benefit of hindsight, or with the benefit of having the more fulsome understanding of the circumstances I now have as a result of the hearing, taking into account the decision of a Full Bench of this Commission in in Civmec Construction & Engineering Pty Ltd v Joel Minchin[1] (Civmec), it may have been possible to avoid the hearing, and immediately attempt to deal with the dispute in another way, such as through a conciliation conference. In that decision, the Full Bench said[2]:
“Section 365 does not itself require that an applicant name his or her employer as a respondent to the application in order to make a valid application and we are unable to discern from the broader context of the provisions in Subdivision A of Division 8 of Part 3-1 any reason why that requirement should be imposed.”
I consider, based on this decision, and based on the material now provided to me by the parties that I can and should attempt to conduct a conciliation conference in relation to this dispute because (a) it is not contended that there was no dismissal (whether because there was no dismissal within the meaning of the Act as defined or because the nature of the engagement was one of independent contract), and (b) I am permitted to attempt to deal with the dispute, even if (as I suspect) the Respondent has been named incorrectly.
Having said this, I intend to make some brief comments about the nature of the application.
The hearing
Both parties are self represented in this matter. The hearing was conducted on 6 March 2025. The hearing was conducted by way of determinative conference. Prior to the determinative conference, I directed both parties to file and serve material in relation to the question as to whether Mr Te Paa was Mr Meyer’s employer, or not.
A significant volume of material was filed. As the particular relevance of some of the material was not always apparent to me, during the determinative conference I asked both parties to address me on the relevance of each document tendered and marked that material. While this took some time, it allowed me to understand each document and how it was said by the parties to be relevant to the question before me. In some cases, the relevance of some of the material was dubious.
Both parties indicated on occasion that even more material could be produced if required. For example, Mr Meyer indicated that efforts could be made to obtain documents not available to him from the Australian Tax Office or the National Disability Insurance Agency. While the Commission has broad powers to inform itself, there is not a capacity to engage in a wide ranging investigative exercise in a matter such as this, nor is it appropriate that I do so. The comments I make about this application are made on the basis of the material before me.
Was Mr Meyer an employee of Mr Te Paa?
While for the reasons outline above, I consider it is not necessary that I determine this matter to finality, significant doubt exists that Mr Meyer was an employee of Mr Te Paa.
For Mr Meyer to be an employee of Mr Te Paa, a contract must have existed between them. As a result of recent amendments to the Act, the characterisation of the relationship, in terms of whether it is one of “employment” or otherwise, requires an examination of matters beyond simply the terms and nature of that contract. But a contract must have existed, nonetheless.
It is not necessary to re-state in detail the required elements for a contract to exist between parties – suffice to say that there must be an “intention” between the parties to create a legal relationship, the terms of which are enforceable; an offer by one party and its acceptance by another; the contract must be supported by valuable consideration; the parties must be legally capable of making a contract; the parties must genuinely consent to the terms of the contract; and the contract must not be entered into for any purpose which is illegal[3].
Whether or not, for the purposes of the Act, such a contract (if there is one) gives rise to an employment relationship, now requires reference to be made to s 15AA of the Act, which deals with how to determine the “ordinary meanings”[4] of the terms “employee” and “employer”. Section 15AA of the Act is a new provision, inserted by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024, and commenced operation on 26 August 2024. It does not apply to an application that was already “on foot” before 26 August 2024 but does apply to applications made after 26 August 2024, such as this one, with respect to relationships in existence entered into before or after 26 August 2024[5].
The introduction of s 15AA seems clearly to be intended to reinstate the “multifactorial test” in relation to meaning of the terms “employee” and “employer” and, by implication, “employment”[6]. This test was most commonly used to distinguish between an “employment relationship” or one of independent contract, by identification and analysis of various “indicia” said to be indicative of one or the other form of relationship[7]. Accordingly, it is appropriate to examine whether such “indicia” indicative of an employment relationship existed between Mr Meyer and Mr Te Paa to determine whether the nature of their relationship was one of employer and employee.
There appears to me to be a distinct possibility that Mr Meyer was engaged to perform the work he did with Mr Te Paa by either one of Mr Te Paa’s sisters or their corporate entities. However, Mr Meyer drew my attention to some aspects of his engagement that he submitted support the notion that Mr Te Paa was his employer. These were:
a.Mr Te Paa gave him a key to his apartment.
b.Mr Te Paa shook his hand on the commencement of the engagement. This was described as indicative of an acceptance of Mr Meyer’s engagement as his carer.
c.Mr Te Paa advised him on more than one occasion that he could hire and fire his care workers and could ask for his key back.
d.Mr Te Paa gave him daily direction / instruction as to what tasks he wanted performed on a daily basis.
e.Towards the end of his engagement, Mr Meyer corresponded via email with Mr Te Paa about taking carer’s leave and sick leave, including furnishing a medical certificate (albeit some emails are addressed to “Hiku and family” or “Hiku and “Hiku’s Agents”).
f.Mr Meyer says that on 29 November 2024 and 5 December 2024, Ms Karauria described Mr Te Paa as Mr Meyer’s employer, and that neither Ms Karauria nor her corporate entity “Kauku’s Life” were Mr Meyer’s employer. I comment on this below.
g.That Mr Te Paa reimbursed directly, from his own account, Mr Meyer for expenses he incurred purchasing him food and medication etc.
It also appeared to me generally that Mr Meyer says he believes his “employer” was Mr Te Paa because otherwise, it was never clear to him who his employer (or principal) was.
Ms Karauria agreed that in meetings on 29 November 2024 and 5 December 2024 she described Mr Te Paa as Mr Meyer’s employer, and said that neither Ms Karauria nor her corporate entity, “Kauku’s Life” was Mr Meyer’s employer. However, she also explained that she and her sister had occasionally referred to Mr Te Paa as the “employer” of his carers, and them as his “employees”. She appeared to consider the use of this language as empowering in respect to her brother.
I do not consider that this characterisation of the engagement carries a great deal of weight. The question as to whether there was a contractual relationship between Mr Meyer and Mr Te Paa, and whether it was one of employment, requires consideration of a significantly broader range of matters than the label that may have been attached to it by Ms Karauria, particularly taking into account her rationale for having used that description on occasion.
There are several aspects of Mr Meyer’s engagement that are not consistent with the notion that he was Mr Te Paa’s employee. Several of these are much more indicative of a legal relationship having existed between Mr Meyer and one or both of Mr Te Paa’s sisters or the entity known as “Kauku’s Life”.
Mr Meyer was engaged in the role by Ms Te Awe Awe, not by Mr Te Paa. I was told Mr Te Paa appeared agreeable to the idea that Mr Meyer work as his carer, but he did not engage him. At some point in mid-July 2024 the person providing care to Mr Te Paa ceased to do so. It became necessary to arrange for another person to be engaged. At the time, Ms Te Awe Awe was in the process of setting up or at least contemplating establishing a business called Whanaucare. Ms Te Awe Awe, and Ms Karauria, and Mr Te Paa were also attempting to change the nature of Mr Te Paa’s funding arrangement to “self managed”. At that point, Mr Te Paa’s plan was largely “plan managed” which meant that most of his NDIS-related care and support was managed through an external provider: “My Integra”. The plan was for Ms Te Awe Awe’s business to become the plan manager. Mr Meyer said he was aware of Ms Te Awe Awe’s intentions to establish her business, and thought the concept it sounded positive. As there was some contact between Mr Meyer and Ms Te Awe Awe at the time, it was arranged that Mr Meyer would be engaged (in some capacity) to provide care services for Mr Te Paa. Ms Te Awe Awe explained that originally, it was thought this may only be an interim arrangement, before another person took over. But it was later decided that Mr Meyer would remain in the role, because his interactions with Mr Te Paa had been going well.
Evidence was given that at or around the commencement of the engagement Ms Karauria in particular decided that Mr Meyer would be engaged for 24 hours a week, working four hours Monday to Friday and 2 hours on Saturday and Sunday, because this aligned with budgeted funding in respect to Mr Te Paa.
Mr Meyer conceded in his evidence that he engaged with Ms Te Awe Awe in relation to this work with Mr Te Paa on a “day to day basis”. While it seems clear Mr Meyer provided care and support to Mr Te Paa using a “person centred” approach, and thus took direction from Mr Te Paa, it seems clear to me he also took direction from Ms Te Awe Awe in relation to his work.
Mr Meyer conceded in his evidence that he was accountable, to some extent to Ms Te Awe Awe and Ms Karauria. Several detailed reports were provided in evidence that Mr Meyer furnished to them in relation to the work he was performing with Mr Te Paa.
The nature of Mr Meyer’s engagement appeared to be dictated by Ms Karauria. While initially, he intended to furnish invoices, when Ms Karauria said that she would prefer the engagement to be on the basis of employment, Mr Meyer agreed with this proposition.
Mr Meyer was eventually provided with payslips which related to the work performed by him caring for Mr Te Paa for a period beginning 12 August 2024 and ending 8 December 2024. The payslips bear the name “Kauku’s Life” and an ABN number. This business name and ABN is registered to Ms Karauria. Mr Meyer disputes the validity of these payslips, and they were not provided to him regularly during his engagement as would ordinary be the case, but retrospectively at the end of his engagement. Ultimately, their veracity may require further analysis, but they reflect payments made to Mr Meyer, which were expressed as casual rates of pay, including different rates having application on Saturdays and Sundays and the accrual of long service leave.
The payslips accord with monies paid to Mr Meyer by Ms Karauria, as evidenced by bank records provided in evidence. The amounts also appear to accord with a running set of diary entries, also provided in evidence, apparently kept by Ms Karauria for the purposes of paying Mr Meyer correctly.
The payslips indicate that tax was remitted in respect to Mr Meyer and superannuation contributions were made. Ms Karauria said in evidence that this has occurred, and it was she who caused tax to be remitted to the ATO in respect to Mr Meyer and superannuation contributions to be made into his chosen fund.
Eventually, Ms Karauria decided to terminate Mr Meyer’s engagement. She provided him with a letter of termination, outlining the reason for the termination, made under the letterhead of “Kauku’s life”. She also provided him with a Separation Certificate.
Consideration
On the basis of the foregoing, I consider it highly unlikely that Mr Te Paa is Mr Meyer’s employer. There appears to be no evidence of a contract having been entered into between Mr Te Paa and Mr Meyer. It may even be that Mr Te Paa lacks capacity to have entered into a contract with Mr Meyer. Some evidence does exist of a contractual relationship between Mr Meyer and one or both of Mr Te Paa’s sisters, or the corporate entity known as “Kauku’s Life”. If there was a contractual relationship between Mr Meyer and Mr Te Paa it appears to have none of the indicia ordinarily associated with employment.
It seems to me unfortunate that Mr Te Paa, a person suffering from a significant disability, has been made the subject of this proceeding in circumstances where there seems so little basis to justify it. It appears to have caused some considerable distress to his family.
It remains the case however, that on the basis of the Full Bench’s recent decision in Civmec, even if Mr Te Paa is not Mr Meyer’s employer, his inclusion as the Respondent to this application does not prevent me from attempting to deal with the dispute, and I intend to do so.
A conciliation conference will be listed in this matter, to occur in due course.
COMMISSIONER
Appearances:
For the Applicant:
Mr Kris Du Preez Meyer appeared on his own behalf
For the Respondent:
Mr Hikurangi Te Paa appeared on his own behalf together with
Ms Wai Te Awe Awe
Ms Hinengakau Karauria
Hearing details:
2025
Melbourne in person and via MS Teams
March 6
[1] [2025] FWCFB 2
[2] Ibid [30]
[3] Australian Workplace Solutions Pty Ltd v P. Fox [1999] AIRC Print S0253
[4] See Fair Work Act 2009 s 335
[5] Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 Schedule 1, Part 18, cl 116 - 119
[6] Explanatory Memorandum, Fair Work Legislation Amendment (Closing Loopholes No. 1) Bill 2023 [947]
[7] See Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario [2011] FWAFC 8307
Printed by authority of the Commonwealth Government Printer
<PR785016>
0
0
0