Mark Fabris v Mt. Gravatt Showgrounds Trust

[2012] FWA 7730

[2012] FWA 7730

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Fabris
v
Mt. Gravatt Showgrounds Trust
(U2012/8215)

COMMISSIONER BISSETT MELBOURNE, 14 SEPTEMBER 2012

Application for unfair dismissal remedy.

[1] Mr Fabris (the Applicant) has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) alleging that he was dismissed from his employment with Mt. Gravatt Showgrounds Trust (the Respondent or the Trust).

[2] The Respondent has raised a jurisdictional objection to Fair Work Australia (FWA) hearing the matter, saying the Applicant was engaged as a contractor and was therefore not an employee of the Respondent. The relationship with the Applicant came to an end when the contract for services was terminated.

[3] This decision deals with the jurisdictional matter only.

[4] The Applicant operated a cleaning company called Fabbo’s Cleaning Services (Fabbo’s).

[5] The question to be answered in relation to this application is whether, in performing work for the Respondent, the Applicant was an independent contractor providing services to the Respondent or an employee working for the Respondent. If the Applicant is an independent contractor as claimed by the Respondent then he is not protected from unfair dismissal. If he is an employee as he claims then he will be protected from unfair dismissal (there being no dispute that the work performed is covered by an award).

Evidence

[6] Evidence in this matter was given by Mr John Fraser and Mr Barry Furner for the Respondent and by Mr Mark Fabris and Ms Susan Fabris for the Applicant.

Mr Fraser

[7] Mr Fraser’s evidence is that he is the Chief Executive Officer (CEO) of the Respondent and has held this position since January 2012. He has been a member of the Trust since January 2011. Mr Fraser says that since he became CEO he has not supervised the Applicant’s work, directed that taxation payments be deducted from payments made to the Applicant, instructed that the Applicant be paid annual leave, instructed the Applicant to wear a uniform, instructed the Applicant on the hours he was to work or directed that equipment owned by the Respondent be provided to the Applicant for performing his work for the Respondent.

[8] On 7 March 2012 Mr Fraser signed a letter to the Applicant in which the Applicant was offered the opportunity to be redeployed to the position of Facilities Manager. This is the role you were originally employed for at the Showgrounds. If you do not make an application for the new role...we will deem you to have opted not to accept redeployment and we will pay you all of your statutory award and contractual entitlement for genuine redundancy...

This matter was discussed, moved and carried at the Trust meeting of the 22 February 2012 [sic]. 1

[9] Mr Fraser says that this letter was sent based on advice from lawyers but when he had that conversation with the lawyers he was not aware that there was any question as to whether the Applicant was a contractor.

[10] In late March 2012 Mr Fraser sought further information from Mr Len Crook, the Office Manager of the Respondent, as to the arrangements relating to Mr Fabris. On receipt of this information Mr Fraser again sought legal advice and, on the basis of the information now provided, was advised that the Applicant was a contractor. Mr Fraser then terminated the services provided by the Applicant.

[11] Mr Fraser was not involved in the recruitment or appointment of the Applicant nor does he have any knowledge of the duties the Applicant was required to perform at the time he was engaged.

[12] Mr Fraser agreed that he did give the Applicant some instructions with respect to cleaning in April 2012 when he considered the cleaning to not be at the standard required. 2 Mr Fraser also directed the Applicant to lock some gates at night and this was done by the Applicant.3

[13] In February 2012 the Applicant approached Mr Fraser about cleaning the exterior of the memorial building for a fee of $450. Mr Fraser accepted the Applicant’s advice that he had done the work before and the fee of $450 had been paid. Ultimately Mr Fraser decided not to have the cleaning work done.

[14] Mr Fraser has no direct knowledge of the cleaning products used by the Applicant nor if they were removed by the Applicant.

[15] Mr Fraser says that no direct money was paid to the Applicant or his wife, with all payments made to Fabbo’s. Fabbo’s stopped invoicing the Respondent in late 2010 but Mr Fraser does not know why. He says that no member of the Board of the Trust gave the Applicant any instruction that he no longer needed to provide invoices.

Mr Furner

[16] Mr Furner is a groundsman at the site. His evidence is that when he saw the Applicant the Applicant presented himself as the events coordinator of the showgrounds 4 and ‘came across as though he was one of the bosses...2IC to the previous CEO’.5

Mr Fabris

[17] The Applicant’s evidence is that he had a registered business called ‘Fabbo’s Cleaning Services’. He says that he allowed the registration of the business to lapse but does not recall when. Prior to working for the Respondent he did provide services to the Respondent on a contract basis for ad-hoc cleaning.

[18] The Applicant says he was offered the position of caretaker with the Respondent which he accepted in around mid-2008. In the six weeks prior to formally taking on the role he did undertake some work for the Trust. During this period he met with members of the Trust to formalise the future arrangement. 6 At this meeting he was provided with a document entitled ‘Caretakers Responsibilities’.7 That document was not specifically addressed to the Applicant and was dated a year before the Applicant commenced with the Respondent. As part of the arrangement he leased from the Trust a residential property on the grounds, in which he and his wife lived. The Applicant says that both he and his wife were engaged by the Trust and he was instructed that work was only to be undertaken by himself or his wife.

[19] The Applicant says that at the time he was engaged he was ‘excited’ by it and did not think about whether he was a contractor or employee. He was happy with the ‘wages’ being paid to him and was happy to ‘follow the direction of Mr Goss’ that Fabbo’s Cleaning invoice the Respondent for the work although at the time he commenced he did not know how much he would be paid or what his rights and obligations were. 8 The Applicant continued to issue invoices from Fabbo’s after the registration of the company had lapsed.9

[20] The role undertaken by the Applicant developed over time. The Applicant says that some members of the Trust did not seem aware of the work required to be done and asked him to put together the duties performed by him and the times taken to undertake the duties.

[21] The Applicant says that he and his wife were given directions by Mr Crook and by various trustees. Any instructions from the CEO (Mr Stirk prior to Mr Fraser) would have come through the office manager 10 or were given directly by Mr Stirk in person, by email or by telephone.11 His supervisor was Mr Crook.12 He was given the weekly booking sheets by Mr Crook.

[22] Cleaning was part of the Applicant’s role with the Respondent. He says that the Respondent provided all of the equipment necessary to undertake the cleaning including cleaning products, toilet paper, hand wash and so on. 13 The Applicant says that supplies for the Respondent were kept at various locations such as a store room in the memorial hall and that he never stored the Respondent’s supplies with any he may have had for Fabbo’s.

[23] The Applicant says he was provided with business cards by the Respondent and told by the office manager that these were to be provided to clients and prospective clients. 14

[24] During his period with the Respondent the Applicant says he did give a quote for some cleaning at a football club in which Mr Stirk was involved. 15 The quote would have been printed on the Applicant’s personal computer.

Ms Fabris

[25] Ms Fabris gave evidence that she assisted the Applicant with cleaning work. Whilst working for the Respondent she was never directed to take holidays and never took any holidays. She says that Mr Stirk had given her directions as to work to be done at the showgrounds. She says that both she and the Applicant were told of what work needed to be done. Whilst there was no direct supervision per se the only people at the showgrounds were her and the Applicant, the office manager and two grounds staff.

Submissions

Respondent

[26] Mr Carroll for the Respondent submits that the evidence supports a finding that the Applicant satisfies the indicia as a contractor and not an employee. Mr Carroll submits that:

• The Respondent did not control or supervise the Applicant. Whilst directions were given there was no control exercised over how the work was done. There was a list of work that had to be done but any contractor would liaise with its principal to be given the work to be done. Further, the Applicant undertook work through Fabbo’s Cleaning for other companies.



• The Applicant ran his own business from his residence.



• The Applicant delegated work to his wife.



• The Applicant had the ability to run his own affairs but for reasons unknown has refused to make tax returns since commencing with the Respondent.



• The Applicant was not paid sick leave or holidays.



• The Applicant wanted to be an employee when it suited him and a contractor when that suited him.

Applicant

[27] Mr Quinn for the Applicant submits that FWA is entitled to rely on uncontested evidence and that where there is a genuine dispute about relevant facts it is prudent that the Commissioner at least require a party to substantiate alleged facts by way of evidence properly adduced. 16

[28] Much of the material of the Respondent consists of sweeping allegations that are unsworn, untested, unsourced and all contested by evidence of the Applicant. No weight should be given to the unattested and unattributed evidence sought to be given from the bar table for the Respondent. By contrast the Applicant has disclosed the full range of evidence relevant to making an assessment as to his status as contractor or employee.

[29] Mr Fraser confirmed that he gave directions to the Applicant although he is not a witness to the first three years of the Applicant’s employment.

[30] Mr Crook, the office manager, was not called to give evidence. Mr Quinn says that FWA is entitled to draw a Jones v Dunkel inference based on the evidence of the Applicant that Mr Crook informed him that he no longer needed to supply invoices. The inference being that the Respondent had determined it was no longer appropriate or necessary to do so in that it did not reflect the employment arrangements that were in place.

[31] FWA should accept that Ms Fabris was specifically authorised by the Respondent to assist the Applicant in undertaking his duties as caretaker.

[32] Mr Quinn submits:

• That the Applicant did not pay tax because he did not know what to do.



• The Applicant was subject to regular and constant direction and supervision.



• The intention of the parties that the Applicant be paid wages can be inferred from the ‘Caretakers Responsibilities document.



• The duties actually performed by the Applicant reflect a position of employee and not contractor.

Was the Applicant a contractor or employee?

[33] In Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario 17 (French Accent)the Full Bench, after considering developments in jurisprudence in this area, summarised the approach to be taken to distinguishing between an employee and an independent contractor.

[30] The general law approach to distinguishing between employees and independent contractors may be summarised as follows:

(1) In determining whether a worker is an employee or an independent contractor the ultimate question is whether the worker is the servant of another in that other’s business, or whether the worker carries on a trade or business of his or her own behalf: that is, whether, viewed as a practical matter, the putative worker could be said to be conducting a business of his or her own of which the work in question forms part? This question is concerned with the objective character of the relationship. It is answered by considering the terms of the contract and the totality of the relationship.

(2) The nature of the work performed and the manner in which it is performed must always be considered. This will always be relevant to the identification of relevant indicia and the relative weight to be assigned to various indicia and may often be relevant to the construction of ambiguous terms in the contract.

(3) The terms and terminology of the contract are always important. However, the parties cannot alter the true nature of their relationship by putting a different label on it. In particular, an express term that the worker is an independent contractor cannot take effect according to its terms if it contradicts the effect of the terms of the contract as a whole: the parties cannot deem the relationship between themselves to be something it is not. Similarly, subsequent conduct of the parties may demonstrate that relationship has a character contrary to the terms of the contract.

(4) Consideration should then be given to the various indicia identified in Stevens v Brodribb Sawmilling Co Pty Ltd and the other authorities as are relevant in the particular context...

• Whether the putative employer exercises, or has the right to exercise, control over the manner in which work is performed, place or work, hours of work and the like...



• Whether the worker performs work for others (or has a genuine and practical entitlement to do so).



• Whether the worker has a separate place of work and or advertises his or her services to the world at large.



• Whether the worker provides and maintains significant tools or equipment...



• Whether the work can be delegated or subcontracted...



• Whether the putative employer has the right to suspend or dismiss the person engaged.



• Whether the putative employer presents the worker to the world at large as an emanation of the business...



• Whether income tax is deducted from remuneration paid to the worker.



• Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks...



• Whether the worker is provided with paid holidays or sick leave.



• Whether the work involves a profession, trade or distinct calling on the part of the person engaged...



• Whether the worker creates goodwill or saleable assets in the course of his or her work.



• Whether the worker spends a significant portion of his remuneration on business expenses...




(5) Where a consideration of the indicia (in the context of the nature of the work performed and the terms of the contract) points one way or overwhelmingly one way so as to yield a clear result, the determination should be in accordance with that result. However, a consideration of the indicia is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture of the relationship from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another. The ultimate question remains as stated in (1) above. If, having approached the matter in that way, the relationship remains ambiguous, such that the ultimate question cannot be answered with satisfaction one way or the other, then the parties can remove that ambiguity a term that declares the relationship to have one character or the other.

(6) If the result is still uncertain then the determination should be guided by “matters which are expressive of the fundamental concerns underlying the doctrine of vicarious liability” including the “notions” referred to in paragraphs [41] and [42] of Hollis v Vabu.

[footnotes omitted]

[34] The approach outlined in French Accent is applicable to the resolution of this matter and I have applied it in reaching my conclusion.

Consideration

[35] On the evidence before me I am not satisfied that the Applicant is a contractor.

[36] I find the evidence of the Respondent to be limited in both its scope and in its probative value as to the relationship between the Respondent and the Applicant.

[37] Mr Fraser was only actively engaged as CEO from January 2012 and had little interaction with the Applicant prior to that date. He could give no evidence as to the basis of the engagement of the Applicant or the practicalities of the work performed by him. Further, the evidence, in particular the letter dated 7 March 2012, would indicate that he thought the Applicant was an employee as did the Board. This much can be discerned from the line in the letter which states that the matter was ‘discussed, moved and carried at the Trust meeting of 22 February 2012’. Whilst this letter was later rescinded it is instructive as to the thinking of the Board at that time.

[38] I do not find the evidence of what Mr Crook said to Mr Fraser or to the Applicant with respect to invoicing as relevant to the matter I must decide. Whether the Applicant was required to provide invoices and how this requirement might have changed is not critical to the determination of the question of whether the Applicant was a contractor or employee.

[39] The evidence of Mr Furner supports the submissions of the Applicant that the Applicant was in fact an employee and not a contractor. Mr Furner said the Applicant presented himself as an events coordinator and came across as a boss. It should be noted that Mr Furner had little interaction with the Applicant.

[40] I accept the evidence of the Applicant. There was nothing put that contradicted his evidence. He was credible and answered questions in a forthright and clear manner. Whilst he can be held responsible for his own actions he is not responsible for the failure of the Respondent to clarify his status as a contractor or employee or the failure of the Respondent to formalise that relationship.

[41] I find that the Applicant and the Respondent have not entered into any written contract. There is little evidence of any clear oral terms of a contract. In any event no-one else party to the discussions was called as a witness. The minutes of meetings of the Trust indicated an on-going debate as to whether the Applicant was a contractor or employee suggesting that even Trust members were not clear of the basis on which the Applicant was engaged.

[42] I find that the Applicant’s duties for the Respondent were varied - they included cleaning, locking up gates at night, dealing with clients, dealing with issues arising from events held at the site and so on. The hours worked for the Respondent do not appear to have been limited in any way such that the Applicant was available at almost any time required. In fact the uncontested evidence of Ms Fabris is that the Applicant worked about 100 hours per week for the Respondent. Such an arrangement left the Applicant with very little time to do work for anyone else.

[43] The Applicant was directed as to work that was required to be undertaken. He was presented with work sheets by Mr Crook and, by his evidence, some directions for work came from the CEO.

[44] That the Applicant issued invoices to the Respondent cannot be taken as indicating that the Applicant was a contractor.

[45] On a practical level there is nothing in the work undertaken by the Applicant, the manner in which the work was undertaken by the Applicant or anything in the relationship between the Applicant and Respondent that would suggest the Applicant was a contractor.

[46] A consideration of each of the indicia in Brodribb supports this conclusion:

• The Respondent did exercise, and had the right to exercise control over the manner in which the work of the Applicant was performed. Mr Fraser agreed that he had given written directions to the Applicant with respect to the cleanliness of toilets and matters such as locking gates. That the Applicant did not have someone looking over his shoulder does not mean the Respondent did not have the right to exercise control over his work. An employee may, after all, work without a high level of supervision.



• Whilst the Applicant did perform some limited cleaning of one other premises there was no practical entitlement for him to do work for others. He worked excessive hours for the Respondent and lived on the site as the caretaker. To have taken on a range of clients, particularly in circumstances where he had no clear contract with the Respondent, and fulfil his role as a caretaker it appears that the arrangement with the Respondent meant that practically he could not work for others.



• There is no evidence that the Applicant advertised his services ‘at large’. The evidence is that the Applicant let his business registration lapse.



• The Respondent provided the cleaning equipment, toilet paper, hand wash and the like used by the Applicant in cleaning the buildings.



• Ms Fabris did some cleaning work for the Applicant. This amounted to a few hours a week. There is no evidence that any paid work was delegated or subcontracted.



• The Respondent was happy for the Applicant to act on its behalf in dealings with clients of the Respondent.



• It appears that during the period of engagement with the Respondent the Applicant did not pay any taxes either through his company or as a PAYG tax payer. Certainly the Respondent did not deduct tax or pay superannuation on the Applicant’s behalf.



• The Applicant was paid a set weekly amount of $450. He was then paid additional amounts if additional cleaning jobs were undertaken. This much is clear from the invoices presented to the Respondent. It appears that the only work he was paid extra for was cleaning. Whilst the invoices indicated that the $450 was for ‘cleaning as directed’ the range of duties performed by the Applicant was much broader than cleaning.



• That the Applicant was paid on weekly invoice is not determinative of whether he was a contractor or employee. If this was so, every other consideration could be subverted by this single issue.



• The Applicant was not provided with paid holidays or sick leave although there is no evidence that he sought and was refused such leave.



• The work undertaken by the Applicant was basic caretaking work. It is not a specialised area and is not a profession, trade or calling.



• Any good will created by the Applicant would accrue to the Respondent. There was nothing that the Applicant would gain to his personal benefit from the work undertaken.



• There was no evidence that the Applicant spent any portion of his remuneration on business expenses.

[47] An evaluation of the evidence against the relevant consideration as established in French Accent leads to the inevitable conclusion that the Applicant is not a contractor but rather an employee of the Respondent.

Conclusion

[48] On the basis that the Applicant was an employee the jurisdictional objection of the Respondent is dismissed.

[49] The file shall be returned for further programming to deal with the merits of the application for relief from unfair dismissal.

COMMISSIONER

Appearances:

D Quinn for the Applicant

A Carroll for the Respondent

Hearing details:

2012.

Brisbane:

August 22, 23.

 1   Exhibit R1 attachment.

 2   Exhibit A1.

 3   Transcript PN136-40.

 4   Transcript PN 200.

 5   Transcript PN202-3.

 6   Exhibit A2, paragraph 15.

 7   Exhibit A2, paragraph 19 and attachment MF2.

 8   Exhibit A2, paragraph 27 and PN277.

 9   Transcript 239-40.

 10   Transcript PN363-6.

 11   Transcript PN467.

 12   Transcript PN 375.

 13   Transcript PN417-21.

 14   Exhibit A2, paragraph 78.

 15   Transcript PN573.

 16   See Abdalla v Viewdaze Pty Ltd, PR922818 (24 September 2002), [6].

 17   [2011] FWAFB 8307.

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