Mr Daniel Kane v Raiwaqa Pty Ltd - [2023] FWC 3087

[2023] FWC 3087

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Daniel Kane
v

Raiwaqa Pty Ltd

(U2023/6843)

DEPUTY PRESIDENT EASTON

SYDNEY, 23 NOVEMBER 2023

Application for unfair dismissal remedy - jurisdictional objection – is the applicant a person who has been dismissed – employee v independent contractor – extensive written employment contract – alleged subsequent agreement that the applicant “will work under his ABN” – no evidence of variation or abandonment of employment contract – applicant was a person who was dismissed.

On 26 July 2023 Mr Daniel Kane made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) for a remedy, alleging that he had been unfairly dismissed by Raiwaqa Pty Ltd t/as Jetts Sevens Hills. Raiwaqa operates a gym under some sort of franchise-type arrangement and Mr Kane worked as an instructor.

Raiwaqa maintains that Mr Kane was not employed but instead worked as an independent contractor, and therefore he was not an employee who was dismissed from employment.

Mr Kane appeared on his own behalf and Mr Michael Lal, Director, appeared on behalf of Raiwaqa. The evidence led and submissions made by the parties, was not as comprehensive as one would hope.

Prior to commencing work, Mr Kane signed an “Employment Contract” that described him as a casual employee. The Employment Contract bore the hallmarks of a comprehensive template document provided by a franchisor to cover the full range of employment terms a franchisee employer might find useful. For example, the contract included terms relating to confidential information, intellectual property rights and moral rights, limitations on damages, and the like.

The Employment Contract required Raiwaqa to pay remuneration of $25 per hour plus superannuation.

Mr Kane is referred to in the contract as “Team Member” and Raiwaqa is referred to as “Jetts”. For present purposes the relevant terms that illustrate the nature of the contract were as fol
lows:
Background
Jetts has offered the Team Member employment on the terms of this agreement and the Team Member has accepted that offer.
…
2. Casual Employment
2.1 No commitment
The Team Member’s employment under this agreement is to be on a casual basis and Jetts makes no commitment that the Team Member will be engaged on a regular basis or that the Team Member will be provided with ongoing employment.
2.2 Termination
The Team Member’s employment will terminate at the end of each shift for which the Team Member is engaged. This agreement will however determine the terms and conditions that apply to the Team Member’s employment for any subsequent shift, if any, for which the Team Member is engaged, subject to the terms of this agreement.
…
3. Appointment and position
3.1 Position
Jetts will employ the Team Member in the position set out in Schedule 1.
3.2 Hours of Work
The Team Member is employed on a casual basis.
The Team Member may be required to work on any of…

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: [2023] FWC 3087
Decision Date: 23 NOVEMBER 2023

CaseChat Overview and Summary

Mr Daniel Kane made an application to the Fair Work Commission for a remedy, alleging that he had been unfairly dismissed by Raiwaqa Pty Ltd, which operates a gym franchise. Raiwaqa claimed that Mr Kane was not an employee but an independent contractor, and therefore not dismissed from employment. Mr Kane had signed an extensive employment contract describing him as a casual employee, and Raiwaqa did not provide evidence of any variation or abandonment of that contract. The court had to determine whether Mr Kane was an employee who was dismissed, or an independent contractor not subject to the unfair dismissal provisions.

The key issue was whether Mr Kane was an employee of Raiwaqa, or an independent contractor. The court examined the terms of the written employment contract, which included provisions for casual employment, remuneration of $25 per hour plus superannuation, and control by Raiwaqa over hours and duties. Raiwaqa argued that Mr Kane worked under his own ABN but provided no evidence of a new contract for services. The court found that the employment contract was the entire agreement and was not varied, abandoned or a sham. Mr Kane’s invoices and payment were consistent with the employment contract. The court concluded that Mr Kane was an employee of Raiwaqa and had standing to apply for an unfair dismissal remedy.

The court accepted that Mr Kane was an employee of Raiwaqa and dismissed Raiwaqa’s objection to jurisdiction. The court found that Mr Kane was an employee who was dismissed for the purposes of s.386 of the Fair Work Act 2009, and that he had standing to apply for an unfair dismissal remedy. The court noted that it would need to determine whether Mr Kane’s dismissal was unfair, unjust or unreasonable in all the circumstances.

Orders