Kyyim Carter v Rubik3 Pty Ltd
[2021] FWCFB 6060
•6 DECEMBER 2021
| [2021] FWCFB 6060 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Kyyim Carter
v
RUBIK3 Pty Ltd
(C2021/4679)
VICE PRESIDENT CATANZARITI | SYDNEY, 6 DECEMBER 2021 |
Appeal against decision [2021] FWC 2812 of Deputy President Dean at Canberra on 20 July 2021 in matter number U2021/1868 – unfair dismissal application - jurisdiction – whether employee or contractor – whether minimum employment period served – no issue of principle or error – permission to appeal refused
[1] On 10 August 2021 Kyyim Carter (Mr Carter, the appellant) lodged an appeal, for which permission is required, against a decision of Deputy President Dean issued on 20 July 2021 1 in which his unfair dismissal claim was dismissed on jurisdictional grounds.
[2] The respondent to the appeal is RUBIK3 Pty Ltd (RUBIK3).
[3] Mr Carter sought a stay of the decision. In advance of these appeal proceedings, Mr Carter sought an order for production of documents.
[4] No stay was granted in light of the fact that the only order made by the Deputy President was an order to dismiss the first instance application.
[5] The application for production is misconceived. The documents sought are contracts concerning another person and matters concerning the respondent’s operations. Mr Carter seeks production to introduce new evidentiary material. An appellate proceeding let alone one where permission is required is not the forum for ordering production of fresh evidence in advance of an appeal being determined.
[6] Mr Carter filed materials in support of his application for permission. By agreement, the matter was dealt with on the papers.
The Decision
[7] The application by Mr Carter under s 394 of the Fair Work Act 2009 (FW Act) was objected to by RUBIK3 on two jurisdictional grounds: firstly, that Mr Carter was a contractor engaged to provide services to a government department client, and not an employee; and secondly, that in any event Mr Carter had not served the minimum employment period required by the FW Act to be eligible to make an unfair dismissal claim.
[8] At first instance, both Mr Carter and a Ms Joanne Kamira gave evidence on statements filed in their name. Ms Kamira was the principal of a business operating as a human resources service provider (Capital Workplace) providing services to RUBIK3. RUBIK3 is a professional services consulting firm providing labour to clients. It was providing those services at the time RUBIK3 sourced Mr Carter’s labour for work in the business of a government department client.
[9] The Deputy President dismissed Mr Carter’s application on both of the jurisdictional grounds advanced by RUBIK3.
[10] On whether Mr Carter was an employee, the Deputy President found:
“[29] The evidence demonstrates, and I find that:
a. The written terms of Mr Carter’s engagement, i.e. the Agreement, clearly spell out that he was engaged as an independent contractor and the parties did not intend to create an employment relationship;
b. Mr Carter was engaged to provide services because of his specialised skillset as a data specialist, explaining why he was unable to delegate or assign the work to others;
c. Rubik3 did not control the hours Mr Carter worked, and his hours fluctuated during the course of his engagement;
d. Mr Carter was able to undertake work for others even though he may not have done so;
e. While he was provided with a computer, this was due to the high level security requirements that were associated with the work he was performing;
f. While PAYG was deducted from the monies paid to Mr Carter, this is not in itself determinative of an employment relationship;
g. No paid leave was provided to Mr Carter;
h. There was no evidence of the creation of Goodwill or saleable assets; and
i. There was no evidence of any requirement (or otherwise) to spend a significant proportion of remuneration on business expenses.”
[11] The Deputy President concluded:
“[30] A consideration of the indicia outlined in French Accent in light of the evidence before me points clearly in one direction, that being an independent contractor arrangement, and I so find.
[12] On whether Mr Carter had served the minimum employment period, the Deputy President concluded:
“[31] Had I found that Mr Carter was an employee rather than an independent contractor, Mr Carter’s application would still fail as I am satisfied that he did not meet the minimum employment period.
[32] As outlined earlier, Rubik3 provided evidence of its employees at the time of the termination of Mr Carter’s contract. There being no evidence to the contrary, I am satisfied that Rubik3 is a small business employer.
[33] Mr Carter worked for less than 12 months, and accordingly did not meet the minimum employment period.”
The Appeal
[13] Mr Carter’s Notice of Appeal critiques the Deputy President’s decision and claims that the Deputy President wrongly granted the respondent permission to be represented, made significant errors of fact, applied legal principles in a disharmonious manner and put unreasonable burdens of proof on the appellant.
[14] Mr Carter submits that permission should be granted in the public interest in order to set aside these errors which he believes have visited an injustice upon him.
Consideration
[15] An appeal under section 604 of the FW Act is an appeal by way of rehearing. The Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.2 There is no right to appeal and an appeal may only be made with permission of the Commission.
[16] As the Deputy President’s decision was made under Part 3-2, the Commission must not grant permission unless it considers it is in the public interest to do so. 3
[17] Further, to the extent Mr Carter’s appeal concerns a question of fact, it can only be made on the ground that the decision involved a significant error of fact. 4
[18] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.5 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.6
[19] For reasons below, we have decided to refuse permission to appeal.
[20] The Deputy President’s decision to grant the respondent permission to be represented was a discretionary decision made in advance of the first instance hearing. It was made following receipt of written submissions from the respondent and from Mr Carter. The Deputy President only needed to be satisfied of one of the factors in s 596 being made out. She was so satisfied with respect to s 596(2)(a). 7 A review of the transcript at first instance suggests that the Deputy President provided an appropriate degree of assistance to Mr Carter to ensure he understood the manner in which proceedings were conducted, and had opportunities to present his response to the jurisdictional objections and test the respondent’s evidence, notwithstanding the grant of permission.
[21] These were orthodox approaches adopted by the Deputy President. They reveal no error nor do they manifest injustice.
[22] The Deputy President’s decision that Mr Carter was a contractor and not an employee was based on findings of fact and the application of established law. The findings of fact were reasonably open based on evidence led by the witnesses, both in writing and orally. The legal principles identified by the Deputy President, based as they were on a leading authority (the French Accent case 8), were correctly applied.
[23] There was no misapplication of facts to the law. Whilst one factual matter weighed in favour of Mr Carter (that PAYG was deducted from monies paid by RUBIK3) other factors weighed against or were neutral. The Deputy President was not wrong in observing that a PAYG deduction “is not in itself determinative of an employment relationship”. 9 The overall conclusion reached was that the evidence, in the sense of the weight of evidence, “points clearly in one direction”10. That approach was consistent with the weighing of indices required of the Commission when determining such questions.
[24] The Deputy President’s conclusion, expressed in the alternative, that Mr Carter had not served the minimum employment period arose from a finding that RUBIK3 was a small business within the meaning of the FW Act (employing less than fifteen employees), and that Mr Carter, with seven months of service, had not met the requirement of twelve months continuous service prior to dismissal.
[25] The Deputy President was satisfied that, at the relevant time, RUBIK3 employed thirteen employees. This was not an agreed fact 11. The Deputy President based her finding on the evidence of Ms Kamira.12 That evidence was disputed by Mr Carter who contended that Ms Kamira should have been included in the count as either an employee of RUBIK3 or that her business was an associated entity. Ms Kamira was cross-examined.
[26] There was no error in the Deputy President’s approach. She was entitled to accept the evidence of Ms Kamira. No evidence was before the Commission to make the contrary findings sought by Mr Carter. There was no factual basis for including Ms Kamira in the count. In any event, the addition of one person would not have raised the count to the statutory threshold of fifteen for the applicable minimum employment period to be six months rather than twelve months.
[27] The Deputy President correctly observed 13 that her finding was based on evidence. The Deputy President did not impose an evidentiary burden on Mr Carter. It was of course open to Mr Carter to adduce evidence in support of propositions he advanced. He did not do so beyond his own evidence, which did not establish those propositions. It is well established that parties have an obligation to adduce evidence in support of positive findings they seek to be made.
Conclusion
[28] The application was dismissed because Mr Carter had not lawfully invoked the Commission’s jurisdiction. There was no apparent error in that conclusion.
[29] It is not in the public interest to grant permission because the conclusion that Mr Carter was not an employee raises no issue of principle, is not counterintuitive, is not contrary to established authority nor manifests an injustice.
[30] Nor is the Deputy President’s alternate finding that the statutory minimum employment period had not been met.
[31] Permission to appeal is refused.
VICE PRESIDENT
Hearing details:
On the papers.
Final written submissions:
Mr Kyyim Carter – 30 November 2021
Printed by authority of the Commonwealth Government Printer
<PR736379>
1 [2021] FWC 2812
2 This is so because on appeal the Commission has power to receive further evidence, pursuant to s 607(2); see Coal and Allied Operations Pty Ltd v AIRC [2000] HCA 47, 203 CLR 194, 74 ALJR 1348, 174 ALR 585, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne J
3 S 400(1)
4 S 400(2)
5 Wan v AIRC [2001] FCA 1803, 116 FCR 481 at [30]
6 Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54, 192 FCR 78, 207 IR 177; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28]
7 Email ‘Chambers – Dean DP’ 14 May 2021 3.14pm
8 Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario[2011] FWAFB 8307 at [30]
9 Decision [29] (f)
10 Decision [30]
11 Applicant Outline of Submissions (first instance) paragraph 99
12 Jo Kamira Witness Statement 30 April 2021 paragraph 9
13 Decision at [32]
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