Mr Mark Feldschuh v Strong Room Technology Pty Ltd

[2024] FWCFB 254

[2024] FWCFB 254

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Mr Mark Feldschuh

v

Strong Room Technology Pty Ltd

(C2024/924)

DEPUTY PRESIDENT GOSTENCNIK DEPUTY PRESIDENT ANDERSON
DEPUTY PRESIDENT EASTON MELBOURNE, 7 MAY 2024

Appeal against decision [2024] FWC 216 of Commissioner Connolly at Melbourne on 25 January 2024 in matter number C2023/6110 – permission to appeal refused

Background

1. Mark Feldschuh (Mr Feldschuh or the Appellant) has lodged a Notice of Appeal, for which permission to appeal is required, against a decision and order made by Commissioner Connolly on 25 January 2024 (Decision).[1] The Respondent to the appeal is Strong Room Technology Pty Ltd (Strong Room Technology or the Respondent).

1. The Commissioner decided that Mr Feldschuh was not an employee of Strong Room Technology and thus not dismissed within the meaning of the Fair Work Act 2009 (Cth) (FW Act). Accordingly, the Appellant’s general protections application under s 365 of the FW Act was dismissed on jurisdictional grounds.

1. On 15 May 2024, this Full Bench conducted a hearing on whether to grant Mr Feldschuh permission to appeal, and on the merits of the appeal. The Appellant and Respondent were legally represented, with permission.

The decision under appeal

1. The Commissioner commenced (at [7]) by setting out the following uncontested facts:

• “The Respondent in this matter, Strong Room Technology Pty Ltd (Strong Room) is a platform technology company founded in 2017 largely operating in the pharmaceutical, health and aged care industries.

• Towards the end of 2019, the Applicant was introduced to Mr Max Mito, one of the founders of the Respondent, (the current CEO and Executive Director) because of his experience and expertise with businesses in the pharmaceutical and associated industries.

• The Applicant, Mr Mark Feldschuh, is a former proprietor of pharmacies with extensive expertise, experience and connections within the pharmaceutical and associated health care industries.

• Following this introduction, Mr Feldschuh undertook an informal business assessment of the company which he provided to Mr Mito.

• In approximately December 2019, Mr Feldschuh was presented with an opportunity to become a Director of the Respondent and to purchase, and be granted, shares in the company, which he accepted.

• Subsequently, Mr Feldschuh actively undertook his duties with the Respondent, making a positive and valuable contribution to the rapid period of growth for company.

• In December 2020, the company Board agreed to formalise Mr Feldschuh’s appointment as a Board Director by entering into written agreement with him. The terms of this agreement were set out in a formal Non-Executive Director Agreement dated 20 December 2020 and signed by both Mr Mito and Mr Feldschuh.

• Schedule 1 of this Agreement specified the duties of the Applicant under the Agreement as:

oTechnology fully integrated partner (example FRED NXT)

oSupply agreement with a group of more than locations (example Direct Chemist Outlet, Ramsey Health etc…)

oIndependent contracts of 30 supply agreement (example supply agreement with independent pharmacies such as David Nolte Pharmacy)

oInvestment group to commit at least $200,000 AUD within the 24 month…