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Li v KC Dental Pty Ltd

Li v KC Dental Pty Ltd

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Case Copied 24 January 2019 84 min read

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FEDERAL CIRCUIT COURT OF AUSTRALIA

LI v KC DENTAL PTY LTD & ORS [2019] FCCA 104

Catchwords:
INDUSTRIAL LAW – Fair work – claims for workplace rights – claims for alleged contraventions of Fair Work Act 2009 – claims of accessorial liability – claims arose from performance of professional services as a dentist – oral agreement – whether independent contractor or employee – applicable principles – measure of control – respondents prepare applicant’s invoices – respondents unilaterally change manner of calculating applicant’s remuneration – applicant not an employee – claims under the Act dismissed – underpayment as independent contractor – applicant entitled to award of compensation for termination of independent contract without proper notice.

Legislation:

Fair Work Act 2009 (Cth), ss.13, 44, 87, 340, 341, 342, 343, 358, 550, 535, 538,

545, 546

Fair Work Regulations 2009 (Cth), reg.3.42

Federal Circuit Court of Australia Act 1999 (Cth), s.76

Federal Court of Australia Act 1976 (Cth), s.51A

Cases cited:

ACE Insurance Pty Ltd v Trifunovski (2011) 200 FCR 532

ACE Insurance Pty Ltd v Trifunovski (2013) 209 FCR 146

Addis v Gramaphone Co Ltd [1909] AC 488

Amaca Pty Ltd v King (2011) 35 VR 280

Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd

(1988) 18 NSWLR 540

Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 169 CLR

279

Commission of Pay-roll Tax v Mary Kay Cosmetics Pty Ltd [1982] VR 871

Connelly v Wells (1994) 55 IR 73

Fair Work Ombudsman v Ecosway Pty Ltd (2016) 348 FCR 296

Fair Work Ombudsman v Grouped Property Services Pty Ltd [2016] FCA 1034

Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd (2015) 228 FCR

346; (2015) 256 CLR 137

Federal Commissioner of Taxation v Barrett (1973) 129 CLR 395

Federal Commissioner for Taxation v J Walter Thompson (Australia) Pty Ltd

(1944) 69 CLR 227

Gomes v Higher Level Care Ltd [2018] EWCA Civ 418

Green v Victorian WorkCover Authority [1997] 1 VR 364

Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939

Hollis v VabuPty Ltd (2001) 207 CLR 21

Jiang Shen Cai (t/as French Connection) v Michael Anthony Do Rozario [2011]

FWAFB 8307

Kazar v Kargarian (2011) 197 FCR 113

Lehigh Valley Coal Co v Yensavage 218 Fed 547 (1914 2^nd CCA)

Li Ting Sang v Chung Chi-Keung [1990] 2 AC 374

Lopez v Deputy Commissioner of Taxation (2005) 143 FCR 574

Management 3 Group Pty Ltd (In Liq’n) v Lenny’s Commercial Kitchen Pty Ltd

(No 2) (2012) 203 FCR 283

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (No 2) [2014]

NSWCA 425; (2015) 256 CLR 104

Nash v Carroll [2018] FCCA 186

Nationwide Mutual Insurance Company v Darden 503 U.S. 318 (1992)

On Call Interpreters and Translators Agency Pty Ltd v Commissioner for

Taxation (No 3) (2011) 214 FCR 82

Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451

Performing Right Society Ltd v Mitchell and Booker (Palais de Danse) Ltd

(1924) 1 KB 762

Putland v Royans Wagga…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 104
Decision Date: 24 January 2019

CaseChat Overview and Summary

The applicant, a dentist, brought proceedings against KC Dental Pty Ltd and others (the respondents) in the Federal Court of Australia, alleging contraventions of the *Fair Work Act 2009* (Cth) and seeking remedies for alleged workplace rights breaches and accessorial liability. The dispute arose from the applicant's performance of professional services as a dentist under an oral agreement with the respondents.

The central legal issues before the Court were whether the applicant was an employee or an independent contractor of the respondents, and consequently, whether the *Fair Work Act 2009* applied to their relationship. If the applicant was found to be an employee, the Court would then consider the alleged contraventions. If the applicant was an independent contractor, the Court would determine if there was an entitlement to compensation for termination of the contract without proper notice.

Justice Kelly applied the established principles for distinguishing between an employee and an independent contractor, focusing on the measure of control the respondents exercised over the applicant's work. The Court noted that the respondents prepared the applicant's invoices and unilaterally changed the manner of calculating the applicant's remuneration. Despite these factors, the Court concluded that the applicant was not an employee. As a result, the claims brought under the *Fair Work Act 2009* were dismissed. However, the Court found that the applicant, as an independent contractor, was entitled to an award of compensation for the termination of the independent contract without proper notice.

Orders