Omer Mussa v Service Stream Limited
[2023] FWC 3075
•27 NOVEMBER 2023
| [2023] FWC 3075 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Omer Mussa
v
Service Stream Limited
(C2023/5665)
| COMMISSIONER YILMAZ | MELBOURNE, 27 NOVEMBER 2023 |
Application to deal with contraventions involving dismissal – jurisdictional objections – Whether employee and whether dismissed – extension of time – objections upheld.
This decision concerns an application made by Mr Omer Mussa (the Applicant) regarding general protections involving dismissal pursuant to s.365 of the Fair Work Act (the Act) in relation to his engagement with Service Stream Limited (the Respondent).
Mr Mussa contends the termination of his engagement occurred after he filed a complaint and is seeking access to the outcome of the investigation into his complaint. His engagement period was around five weeks and the actual termination date is contested. Despite initially confirming his engagement as an independent contractor, he informed the Commission he intends to contest this and submits that he was an employee of the Respondent. Should Mr Mussa establish that he was an employee that was dismissed, given his application was filed on 15 September 2023 which is after the statutory 21-day time limit, a determination must be made whether to grant Mr Mussa an extension of time.
Mr Mussa submits that the Respondent breached sections 340 (workplace rights) and 351 (discrimination) of the general protections provisions of the Act.
The Respondent contends that Mr Mussa is not an employee but an independent contractor engaged through Talent International, an Agency (the Agency). It therefore contends that Mr Mussa was not dismissed by the Respondent.
This decision firstly deals with the jurisdictional question whether Mr Mussa was dismissed. The matter of extension of time is also dealt with.
A hearing was scheduled for 15 November 2023 for the jurisdictional objections. Both parties were self-represented and relied on their written and oral submissions.
Was the Applicant dismissed?
The evidence and submissions of the Applicant
Mr Mussa submits that he was employed as a Workforce Planner under a six-month employment contract from 17 July 2023 until 17 January 2024 with the Respondent.[1] He submits that he was telephoned on 16 August 2023 by his Agency to discuss the decision of the Client to terminate the contract. On 17 August 2023 at 9.30am Mr Mussa was then telephoned by his Service Stream Manager Ms Narj Ghorbani to advise that his Agency would be contacted about termination of the contract. He was informed during this telephone call of certain allegations regarding his performance in the role. Mr Mussa submits that he challenged the allegations against him and sent through evidence for his Manager’s consideration. He further submits that she stated that despite his evidence, which she gave a commitment to look into, it was unlikely to change the decision to terminate the contract. Mr Mussa contends his employment was dismissed on 23 August 2023 which covers the notice period in the contract. He submits that he was moved to another team, worked from home and prevented from entering the workplace during the notice period.
In relation to whether he was dismissed, Mr Mussa submits that his termination of contract is a dismissal at the initiative of the employer consistent with s.386 of the Act. He submits that the action of his Manager to terminate the contract early had the effect of dismissal, otherwise his contract would continue until 17 January 2024.[2]
In his supplementary written submissions, Mr Mussa submits that the evidence of introduction, interview and potential opportunities are indicative of a contract of employment arrangement rather than contract for services. In support Mr Mussa tendered in evidence an email dated 3 July 2023 from his Agency seeking his interest in the position of Resource, Optimisation, Compliance & Planning Lead[3] with an attached job description[4] and on 4 July 2023 he was invited to an interview with the Respondent.[5]
Mr Mussa further submits that following the interview he was offered employment in a different role- Workforce Forecasting Planner with the Respondent. The email to support this submission, I observe is from the Agency specifying that the offer is a six-month contract with the potential to extend or convert to permanent. The offer is a per day rate and as a contractor with the Agency.[6]
Additional documentation was tendered in evidence including the Independent Contractor Agreement containing the Schedule of Assignment between Mr Mussa and the Agency signed on 10 July 2023 and the signed contractor guidelines executed by Mr Mussa on 11 July 2023.[7] Regarding this material Mr Mussa contends that the Respondent made the offer of employment through the Agency and the offer as specified concerned the duration of the contract, the position description, the salary offered and proposed commencement date. Mr Mussa contends the email satisfied a formal offer and acceptance. In addition, he submits that in a telephone call with the Agency he accepted the offer and by his provision of referees to the Agency he confirmed intent.[8]
Despite attachment 7 which identifies Talent International as the principal, Mr Mussa as the independent contractor and Respondent as the client of the Agency, Mr Mussa contends that the contract fails to provide accurate explanations of the actual arrangement in practice. He submits that the work conducted over the five week period more closely aligned with the position description of the first position that he interviewed for and therefore the criteria of employment is relevant to demonstrate a contract of employment instead of a contract for services.[9] Mr Mussa then proceeds to identify the following six indicators of the arrangement which he submits closely align with an employment relationship:
· Control over work- It is submitted that the Respondent controlled how work was to be conducted, the hours of work and rest breaks. In addition, Mr Mussa purports that the contractor agreement misrepresents the arrangement, and he further submits that he was forced to sign the document.
· Exclusive engagement- It is submitted that his dedication to the one contract is indicative of employment because an independent contractor might serve multiple clients concurrently.
· No involvement in business promotion- It is submitted that he had no role promoting the services of the Respondent which ordinarily sits with employees.
· Provision of equipment- It is submitted that the Respondent provided the laptop and headset, which contrasts with the situation where the provision of tools is by the contractor.
· Absence of business expenses- It is submitted that because he did not incur any business expenses himself, this aligned more closely to an employee relationship.
· Creation of saleable assets- It is submitted that the work performed for the Respondent produced saleable assets which is a feature of an employment relationship.
During the hearing Mr Mussa disclosed the payment process which required him to complete a timesheet for the Agency through the program ENGAGE, the timesheet was then verified by a supervisor at the Respondent, and the payment consisting of a daily rate was processed by the Agency and paid directly less applicable tax. Mr Mussa was granted additional time following the hearing to submit his letter of termination and examples of his timesheet and payslip. I observe that the Respondent did not make any submissions regarding the additional materials submitted. I observe that the document described as a payslip is titled “payment confirmation.” While the document contains the relevant week ending date, the number of items (days), rate and superannuation contribution, it does not contain other information ordinarily found in a pay slip. The document also refers to Service Stream Limited as the client. Two timesheets were submitted which contains limited information concerning attendance. The letter of termination is from the Agency to Mr Mussa confirming termination of the assignment with the client Service Stream and the independent contractor agreement consistent with the terms of the agreement between the Agency and Mr Mussa.
The evidence and submissions of the Respondent
The Respondent contends that the application has not been properly made under s.365 of the Act and as such the Commission does not have jurisdiction. The ground for the jurisdictional objection is that Mr Mussa was not an employee of the Respondent therefore was incapable of being dismissed by it pursuant to s.386(1)(a). This was raised in addition to the objection that the application is out of time as provided in s.366 of the Act. It further submits there are no exceptional circumstances to extend the time that meet s.366(2) of the Act.
The Respondent submits that Mr Mussa was engaged as a contractor through the Agency as a Workforce Forecasting Planner. It further submits that the Respondent entered into a contract with the Agency for the delivery of services and not with Mr Mussa direct. It tendered in evidence the Contracting Service Schedule from the contract agreement between Service Stream and the Agency which is signed on behalf of the Agency and the Respondent. This document identifies Mr Mussa as the contractor to commence on 17 July 2023, provides the daily rate plus GST and amongst other matters refers to contractor buy out fees that are contained in the Agreement. It submits that it has no record of Mr Mussa as an employee of the Respondent. The Respondent submits that the full contracting service agreement could not be located for these proceedings, but the contracting service schedule which was located is from an agreement with the Agency.
It is submitted that Ms Ghorbani the Manager at Service Stream informed Mr Mussa of its decision to terminate the service contract with the Agency and that he should expect to be contacted directly by his Agency. The Respondent could not confirm the date of the phone call by Ms Ghorbani nor the final date worked by Mr Mussa. However, it did not contest the dates submitted by Mr Mussa.
Consideration and decision
Subdivision A of Part 3.1- general protections deals with contraventions involving dismissal. Section 365 concerns an application for the Commission to deal with a dismissal dispute. Relevantly the provision provides:
Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
Section 365 requires that the person that alleges the dismissal is a contravention of the Act must be “dismissed”. The Act further defines dismissed. The relevant provision is s.386:
Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
Section 365 requires that should an application be made, it must be by a person that is dismissed and the person alleges the dismissal is in contravention of the Act.
To make a general protections dismissal application the person must have been dismissed as defined by s.386 of the Act. Before exercising its powers under s.368[10] of the Act, the Commission must be satisfied that the person was dismissed in fact.[11] To be dismissed by the Respondent, Mr Mussa must be an employee capable of being dismissed and not an independent contractor of the Respondent.
The relevant provision in this matter is the application of sub section 386 (1) of the Act. There is no dispute that the exclusions in sub sections 386 (2) and (3) do not apply. Both subsections of s.386 (1) relate to the employment coming to an end at the employer’s initiative.
The legal principles of whether a person is an employee or independent contractor was considered by the High Court in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd[12](Personnel Contracting) and ZG Operations Australia Pty Ltd v Jamsek[13] (Jamsek). Where the rights and duties of the persons (independent contractor and principal) are exclusively in a written contract and the terms are not challenged as a sham or varied, the contract is to be the decisive factor.[14] The central premise is the obligations of the parties under the contract at the time the contract was entered into, and not how the relationship has “come to play out in practice but bearing no necessary connection to the contractual obligations of the parties.”[15] Established principles of contractual interpretation are important[16] and consideration of subsequent conduct is for the purpose of assessing legal rights and obligations.[17] The High Court further made observations of the judgement in Stevens v Brodribb Sawmilling Co Pty Ltd (Stevens),[18] where Kiefel CJ, Keane and Edelman JJ noted that the totality of the relationship must be considered and that the right of one party to control another was not ‘the only relevant factor’[19], but it also was not an invitation to broaden the inquiry beyond contractual rights and duties.[20] It is noted that the High Court in Stevens, found that the relationship was not confirmed in writing.[21]
In this case the rights and obligations were reduced to writing prior to commencement of the relationship. While in Mr Mussa’s concluding paragraph of his supplementary submissions he suggests the contract was a sham, no evidence was led in this regard. Mr Mussa further contends that he had no alternative other than to accept the contractor agreement because of his need for work after 3 months of being out of work. There was no evidence of any inducement to sign the contractor agreement and on reading the emails and all of attachment 7, I do not find that the materials are ambiguous but rather quite clear and detailed that the Agency engaged Mr Mussa as a contractor to serve the Agency’s client- Service Stream. The materials do not demonstrate a direct employment relationship between Mr Mussa and the Respondent.
In relation to the characteristics that Mr Mussa identifies as being indicative of an employment relationship are his views of the practical relationship. According to the most recent authority, the starting point is the express written contract and not a broader inquiry beyond the contractual obligations in the contract between Mr Mussa and Talent International. Importantly the Respondent is not a party to the contractor agreement or any other direct contractual agreement with Mr Mussa. The only evidence of a contract with Service Stream is a service agreement between it and the Agency.
Mr Mussa submits his employment arrangement was with the Respondent, but the facts demonstrate that this is not the case. On closer assessment of the facts, Mr Mussa agreed to an introduction to the Respondent by the Agency, for an interview in relation to a permanent role. Following the interview, the Agency advised Mr Mussa that instead of direct employment in the position of Compliance Coordinator/ Squad Lead, Service Stream offered a six month contract position as Workforce Forecasting Planner. I observe the initial role interviewed for was a leadership/ management role and the detail of two positions in the job descriptions are different. The email from the Agency clearly states that the offer is on the basis of a six-month contract that may be extended or converted to permanent. A per day rate is offered and the email ends with:
“There are a few other benefits to contracting with Talent including product discounts and free professional development training with Skillsoft.”[22]
This evidence demonstrates that the Agency presented to Mr Mussa that it acts as a labour hire agency and proposed that it supply the host (the Respondent) with Mr Mussa’s labour. This arrangement was agreed to by Mr Mussa.
Further, following successful reference checks, Mr Mussa was sent a clear and unambiguous covering note together with the independent contractor agreement, schedule of assignment and contractor guidelines on 10 July 2023.[23]
In acceptance of the arrangement the independent contractor agreement was signed by Mr Mussa. The document clearly identifies Mr Mussa as the Contractor for Talent International. The document provides rights and responsibilities of each party to the arrangement. There is no ambiguity or doubt in the document that the direct relationship is between Mr Mussa and the Agency. There can be no confusion on reading the document that no employment relationship arises between Mr Mussa and the Respondent in this matter.
The Schedule of Assignment sent by the Agency identifies the contract number, that Mr Mussa is the contractor, the client is the Respondent, location, start and end date, daily fee and notice period of 5 days. The Contractor Guidelines welcome Mr Mussa and note the objective of the document is to provide useful information and policies while on contract assignment for the Agency. The document provides information on accessing and using the portal ENGAGE by contractors to manage the whole experience from signing the contract, completion of timesheets and managing one’s professional profile. The document contains other vital information such as expectations concerning workplace health and safety while contracting including other services and policies.
In practice the Agency charged the host for the labour, the Respondent paid the Agency and the Agency paid Mr Mussa. On this basis, it is unnecessary to consider Mr Mussa’s description of the characteristics that he says is indicative of an employment relationship between himself and the Respondent as there was no contractual relationship between them.
Having assessed this evidence together with the email correspondence and nature of payment there can be no doubt that the relationship between Mr Mussa and Service Stream is not of an employee and employer. There is no evidence to conclude a direct employment relationship between the parties in this matter. On this basis the jurisdictional objection is upheld and the application is to be dismissed for the reason that the application is not made in accordance with the Act.
Extension of time objection
The Respondent submits that the application is out of time and should be dismissed contending that the Commission should determine this matter. The parties made submissions in relation to the extension of time application, the second jurisdiction objection.
Section 366(1)(a) and (b) of the Act confers that a general protections application involving dismissal must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.366(3). Ms Mussa’s application was lodged 2 days late. He acknowledges that his application is late but that he has good reasons. Mr Mussa submits the reason for delay is that he erroneously filed an unfair dismissal application and on learning of his administrative error he corrected it.
The submissions from both parties were short.
The legislative framework
The Act allows for an extension of time by the Commission if it is satisfied that there are exceptional circumstances. Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[24] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[25]
Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.
Delay
In relation to the delay in filing the application Mr Mussa submits that it was entirely due to an administrative error. He tendered in evidence an email he sent to which he says demonstrates his intent to challenge the Respondent’s decision and engage with the dispute settlement process.
On 12 September 2023, Mr Mussa submitted a form F2 instead of a form F8. In acknowledging this alleged error Mr Mussa says “I want to emphasize that this error was purely administrative in nature and did not align with my actual intent to file a general protections application involving dismissal.”[26] He further submits attachment 4 is evidence of mistakenly submitting a form F2. I observe no attachment 4 was submitted, but during the hearing he confirmed that attachment 4 was intended to be the receipt from the Commission confirming the filing of the unfair dismissal application. Despite the absence of the receipt, the date of filing the unfair dismissal application was 12 September 2023 and this was not contested between the parties.
On 15 September Mr Mussa received a call from the Commission drawing his attention to eligibility to file an unfair dismissal application and he says this brought to his attention the error. On learning of the error, he submits that he then filed the correct form F8 on the same day.
The Respondent submits that both the unfair dismissal and general protections application served on it were in substance identical and again incorrectly identified it to be the employer. It further submits that the reason for delay is not exceptional to warrant an extension of time.
Filing an online unfair dismissal application instead of a general protections application is not an administrative error on its own. The Commission’s website distinguishes between an unfair dismissal and general protections dismissal disputes and clearly identifies the eligibility criteria. Mr Mussa provided no further evidence in support of his alleged administrative error and on this basis the reason for delay is not exceptional without more than a mere submission that it was an administrative error. I do not consider the reason for delay weighs in favour of the extension of time.
Dispute the dismissal
Mr Mussa submits that he challenged the dismissal immediately on 17 August 2023 by sending evidence to his manager and in support he relies on attachment 1 and attachment 2. Attachment 1 is an email sent at 3.48pm 17 August which is short and without context it is unclear. It does appear in the email that he acknowledges the allegation of being a slow learner and intends to demonstrate an understanding of the operation in the planning team. Attachment 2 is an email to the same person at 10.32am which provides a report of his tasks performed each day. This email also refers to an attached knowledge document that records his learning and the tasks performed for certain individuals.
Mr Mussa further refers to a complaint made by him through STOPLINE, a 3rd party provider (whistleblower hotline service) which he says marked his effort to dispute the dismissal. Mr Mussa attached document 3- his email to STOPLINE dated 18 August 2023. In this email Mr Mussa reports that his contract is to be terminated on 23 August and that he only learned the day before that the actual reason for the termination of the contract was his response to alleged bullying. He describes his response as his statement to his senior manager that he expected to be treated with respect. In the email it is alleged that the discrimination is because the reason for termination of his contract was not for truthful reasons. The email further states that he had a conversation with his manager and it was alleged that he is a slow learner which he disputes. He submits that he can disprove the allegations because he kept a knowledge register over the four weeks of work and further refers to a positive communication on 10 August about how well he was progressing. The attachment again alleges discrimination without referencing a protected characteristic.
Based on these submissions Mr Mussa challenged the reasons for the termination of his contract even though he did not place the Respondent on notice that a general protections application on the basis of dismissal was probable. At best this consideration may weigh in favour of an extension.
Prejudice
Mr Mussa submits that he does not believe the delay has caused prejudice. The Respondent submits the application and its delay will cause prejudice by incurring costs defending the claim.[27] As the Respondent was not the employer that dismissed Mr Mussa, there is undeniably inconvenience and personal cost associated with defending its position. While the inconvenience of the application may not be prejudicial, the absence of prejudice is insufficient to grant an extension.
Merits
Mr Mussa says the allegation that the termination is performance based has no evidence in support by the Respondent. He contrasted this reason to the earlier alleged reason that the termination occurred “in the wake of” his ‘confrontation’ about bullying by a senior colleague. Mr Mussa contends that while the reason given for the termination of the contract was for performance he maintains that the accurate reason was a result of his interaction with the senior colleague.[28]
The Respondent states that there is no prospect of success in the application as Mr Mussa is a contractor engaged through an Agency.[29] It challenges Mr Mussa’s submissions that the earlier vacancy for which he applied is an indication of an employment relationship and as the evidence shows he was engaged as a contractor through an agency and was not dismissed.
The difficulty with this consideration is that Mr Mussa was not an employee and for those reasons any possible success of the application is unlikely despite whether there are merits to the reason for the termination. Evidence was not led nor is it appropriate to interrogate the merits in an extension of time. On the basis that the application is misconceived due to there being no dismissal I consider that the merit of the application is not strong and does not weigh in favour of an extension.
Fairness
Neither party addressed this consideration other than stating it was not relevant to the application. On this basis I consider it a neutral factor.
Conclusion
I need to be satisfied that there are exceptional circumstances warranting an extension of time. It is on the balance of the considerations that I have decided not to grant an extension of time. The delay and merit weigh against an extension, neutral factors were fairness and prejudice and it is the steps taken to challenge the termination of the contract that weighed in favour of an extension. Therefore, having considered all of the evidence and submissions against each of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the extension of time application is dismissed.
On the matter of both jurisdictional objections Mr Mussa’s application must be dismissed. I do not find that Mr Mussa was capable of being “dismissed” as there was no employee and employer relationship with the Respondent. As there was no direct employment relationship the s.365 application cannot succeed as the application was not made in accordance with the Act. Even if I am wrong on this point, there are no exceptional circumstances to warrant an extension of time application.
An order[30] to that effect will be issued with this decision.
COMMISSIONER
Appearances:
Mr O Mussa for the Applicant
Ms L Geiger for the Respondent
Hearing details:
Wednesday 15 November 2023
[1] Applicant’s outline of argument – objections. question 1e, noting the date of commencement was incorrect as it referred to 17 January 2023.
[2] Ibid, question 1d.
[3] Applicant’s outline of argument – supplementary submissions attachment 1 email undated but advised dated 3 July 2023 from Talent International, Attachment 3 position description for Resource, Optimisation, Compliance & Planning Lead.
[4] Ibid, supplementary submissions attachment 5.
[5] Ibid, attachment 2 email invitation to an interview on Teams with Service Stream Manager Narj Ghorbani on 6 July 2023.
[6] Ibid, attachment 6.
[7] Ibid, attachment 7.
[8] Applicant’s Submissions, ‘Legal Argument for Contract of Employment (Not Contract of Service)’.
[9] Applicant’s outline of argument – supplementary submissions on page 2.
[10] Dealing with a dismissal dispute other than by arbitration.
[11] Coles Supply Chain Pty Ltd v Milford (2020) 279 FCR 591, 54.
[12] [2022] HCA 1.
[13] [2022] HCA 2.
[14] Personnel Contracting, [43].
[15] Ibid, [61] and [174].
[16] Ibid, [60].
[17] Ibid, [52] – [55].
[18] (1986) 160 CLR 16.
[19] Ibid, 20.
[20] Personnel Contracting, [56].
[21] Ibid.
[22] Applicant’s outline of argument – supplementary submissions attachment 4 email undated but advised dated 6 July 2023 from Talent International, the same email was included in attachment 6 and was dated.
[23] Applicant’s outline of argument – supplementary submissions attachment 7.
[24] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[25] Ibid.
[26] Applicant’s outline of argument – extension of time, question 1d.
[27] Respondent’s outline of submissions, 23-24.
[28] Applicant’s outline of submissions – extension of time, question 1h.
[29] Respondent’s outline of submissions, 25.
[30] PR768572.
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