Olsson v Tiny TOTS Images Pty Ltd

[2016] FCCA 585

FEDERAL CIRCUIT COURT OF AUSTRALIA

OLSSON v TINY TOTS IMAGES PTY LTD [2016] FCCA 585

Catchwords:

INDUSTRIAL LAW – Small Claims – Jurisdiction – whether the applicant was an employee – application dismissed

Legislation:

Fair Work Act 2009 (Cth)

Applicant: ROBIN OLSSON

Respondent: TINY TOTS IMAGES PTY LTD

File Number: BRG 939 of 2014

Judgment of: Judge Baumann

Hearing date: In Chambers on the papers

Date of Last Submission: 12 April 2015

Delivered at: Brisbane

Delivered on: 18 March 2016

REPRESENTATION

The Applicant appearing in person

The Respondent appearing in person

ORDERS

1. That the Application filed on 15 October 2014 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 939 of 2014

ROBIN OLSSON

Applicant

And

TINY TOTS IMAGES PTY LTD

Respondent

REASONS FOR JUDGMENT

1. This is a claim by Robin Olsson who was working in Australia under a visa, which has since expired causing the Applicant to leave the country.  His current whereabouts is unknown, although he had previously communicated by email that he had an address in Western Australia to which correspondence may be sent, but correspondence to that address from the Court has been returned.  As is the case when dealing with small claims under the Fair Work Act 2009 (Cth) neither party was legally represented.

2. In the circumstances, the Application filed on 15 October 2014 has been delayed because of the failure of the Applicant to satisfy the Court he had actually served some further material on the Respondent.  To be fair, nearly all communication has been undertaken by email and, accordingly, the Court has decided to proceed with a determination “on the papers” in Chambers.

3. The history can be summarised as follows:

   a)The Applicant claims he was employed as a photographer under a “contract” for the period 5 May 2014 to 6 June 2014.  The work, he says, required him to travel all over Western Australia.

   b)The Applicant claims the Respondent owes him $2,911.25 for services under the “contract” – with the gross sum being estimated as follows:

   i)Week ending 18 May 2014 – Work 25 hours; Travel 10.5 hours;

   ii)Week ending 25 May 2014 – Work 25.5 hours; Travel 22 hours;

   iii)Week ending 1 June 2014 – Work 29.75 hours; Travel 11.5 hours; and

   iv)Week ending 8 June 2014 – Work 10 hours; Travel 21.5 hours

   Culminating in a total of 90.25 work hours at $25 an hour and 65.5 hours travel at $ 10 an hour.

   c)The Respondent company Tiny Tots Images Pty Ltd in an Affidavit filed 26 March 2015 by the Managing Director, Jennifer Waters disputes the liability upon a number of grounds, summarised as follows:

   i)That Mr Olsson was not an employee but a contract worker who provided an invoice for the hours he worked;

   ii)The Mr Olsson did not follow company internet use policy;

   iii)That Mr Olsson had overestimated the amount of invoiced hours he worked for the business;

   iv)That Mr Olsson was regularly absent for unexplained periods of time during scheduled work hours;

   v)That there had been customer complaints about the quality of Mr Olsson’s work; and

   vi)That Mr Olsson had caused damage to photographic equipment, estimated by the respondent to be over $1000 with some equipment unable to be repaired.

4. Both parties have supplied a number of copies of text messages, including copies of text messages seeking to compromise the “debt” which I have ignored.

Jurisdictional Issue

1. The Applicant claims he was employed under a “contract”, however no copy of any contract of services has been provided.

2. The nature of the engagement was contractual.  The Applicant had complete flexibility in the assignments, sourced by the Respondent, that he undertook.  The method of payment (an hourly rate for both time spent and travel) is consistent with the Applicant being an independent contractor rather than an employee.

3. He utilised much of his own equipment.  It appears, contrary to the agreed terms of the oral contract, he was required to provide an Australian Business Number (ABN).  He did not do so.  The is no evidence he was to have income tax deducted on a PAYG basis.

Conclusion

1. On the material submitted, the Applicant may well have a claim to payment under the “contract” and the Respondent might as alleged, have a counter-claim or set off, however I am not satisfied that the nature of the business relationship is within the jurisdiction of this Court under the Fair Work Act.  The Applicant could, if he chooses to do so, file a claim in a State Court seeking civil remedies however I am compelled to dismiss the claim as not being within the jurisdiction.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Baumann

Date: 18 March 2016