Mr Alfie James Edgeworth v Fluid Assets Australia Pty Ltd
[2024] FWC 587
•7 APRIL 2024
| [2024] FWC 587 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Alfie James Edgeworth
v
Fluid Assets Australia Pty Ltd
(C2024/233)
| COMMISSIONER PLATT | ADELAIDE, 7 APRIL 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection dismissed
On 11 January 2024, Mr Alfie James Edgeworth (the Applicant) lodged a s.365 general protections application seeking a remedy in relation to the termination of his employment with Fluid Assets Australia Pty Ltd (the Respondent) which the Applicant suggested occurred on 8 December 2023.
On 2 February 2024, the Respondent Filed a Form F8A Employer Response which raised a jurisdictional objection in that the Applicant was not dismissed as he was not an employee, but rather a Contractor.
On 8 February 2024, Directions were issued for the filing of material and a notice of listing for the determination of the matter on 5 March 2024. The Applicant filed material and attended the Hearing. The Respondent did not file any material or respond to follow up telephone calls or emails which were addressed to the contact provided on the Form F8A.
The material received was compiled into a Digital Court Book and emailed to the parties on 4 March 2024.
The Hearing was conducted on 5 March 2024 by video conference. The Applicant represented himself, the Respondent did not attend.
The Digital Court Book was received into evidence and Mr Edgeworth gave evidence.
The relevant evidence is summarised as follows:
· In November 2022, the Applicant was employed by the Respondent as a software developer on a full-time basis, working 40 hours per week at $50.00 per hour (gross). The Respondent is a cryptocurrency startup, the Applicant’s responsibilities included developing and maintaining the company’s website applications.
· In June 2023, the Applicant was requested to resign from his employment and complete the documentation provided. The documentation provided included a covering letter dated 23 June 2023 which repeatedly describes the fixed term engagement an employment arrangement and a contract which attempted to detail the arrangement as a contract for services.
· The Applicant gave evidence that he relied on the covering letter and understood the ongoing arrangement was intended to be an employment arrangement.
· The Applicant sent a resignation letter and executed the contract in accordance with the Respondent’s direction.
· The Applicant contended that the work arrangements did not change post execution of the 23 June 2023 documentation, in that he continued to work set days, Monday-Friday, 9am-5pm, as instructed, and was expected to provide notice of any absence from these hours including an expectation to attend 9:30am daily meetings.
· The Applicant submits his work activities remained identical to what they were previously. He continued acting as a software developer, providing his labour and working on the same projects and new emerging projects as required by the Respondent.
· The Applicant was engaged in this arrangement as an individual person, not as a business, company, or trust.
· The contract specified was an arrangement with no set prescribed work outcomes, requiring that the Applicant work "as generally instructed by Mr. Alex Baigent from time to time."
· The Applicant did not have an ABN and never invoiced the Respondent for his services, having been told that he did not need to, as his daily working hours were tracked online via a service called ‘Harvest’. The Respondent continued to pay the Applicant on a fortnightly basis, based on hours worked.
· The Applicant contended he was dismissed on 8 December 2023.
The evidence of the Applicant was not in dispute.
Consideration
The critical question for determination is whether the Applicant was an employee or a contractor on 8 December 2023.
I am cognisant of the recent High Court decisions in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd[1] and ZG Operations Australia Pty Ltd v Jamsek[2] I have also considered the decision in EFEX Group Pty Ltd v Bennet[3]
The Respondent’s decision not to engage in this matter has adversely impacted on its ability to pursue the jurisdictional objection raised, however I am mindful that I must be satisfied that the Applicant was an employee.
The Applicant contends the contract that the Respondent appears to assert was in force on 8 December 2023 was the product of coercion and misrepresentation. The coercion comes from the repeated instructions from the Respondent for the Applicant to sign the contract and the misrepresentation results from the repeated representation that the Contract described an employment arrangement in the covering letter.
The Applicant also contends that the working arrangements between the parties did not change after the execution of the contract on 23 June 2023 and that for all purposes the Applicant continued to work and be treated as an employee of the Respondent, save for the deduction of tax.
Based on the material before me, I accept the Respondent pressured/coerced the Applicant to execute the contract.
I also accept that the Respondent misrepresented the contract as an employment arrangement in the covering letter and that the Applicant appears to have relied upon that representation.
I accept that it could be argued that the contract signed between the parties is a comprehensive written contract. However the evidence reveals that the circumstances in which the Contract was ‘agreed’ appear to be as a result of undue pressure and/or misrepresentation. In such cases the nature of the intended relationship comes into play. The ‘label’ the parties have expressly given to their legal relationship is an important consideration.[4] However ‘[t]he parties cannot create something which has every feature of a rooster, but call it a duck and insist that everyone else recognise it as a duck’.[5]
In my view, these circumstances taints the 23 June 2023 contract.
Decision
Having considered the unchanged arrangements between the Applicant and the Respondent before and after 23 June 23, I find that the arrangement as at 8 December 2023 was an employment arrangement.
I find that the Applicant was dismissed on 8 December 2023 and the jurisdictional objection has not been made out.
As the Respondent has not engaged in the process, conciliation is not possible and for that reason, I have determined to issue a Certificate in accordance with s.368(3) of the Act.
COMMISSIONER
Appearances:
Mr A Edgeworth as the Applicant.
Hearing details:
2024
Video using Microsoft Teams
5 March
[1] [2022] HCA 1
[2] [2022] HCA 2
[3] [2023] FCA 508
[4] Abdalla v Viewdaze Pty Ltd t/a Malta Travel (2003) 122 IR 215 [34]; citing Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16.
[5] Abdalla v Viewdaze Pty Ltd t/a Malta Travel (2003) 122 IR 215 [34]; citing Re Porter (1989) 34 IR 179, 184; Massey v Crown Life Insurance [1978] 2 All ER 576, 579; approved in AMP v Chaplin (1978) 18 ALR 385, 389.
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