Peter Hobbs v The Salvation Army - [2024] FWC 159

[2024] FWC 159

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Peter Hobbs
v

The Salvation Army

(U2023/9386)

DEPUTY PRESIDENT BELL

MELBOURNE, 12 MARCH 2024

Application for an unfair dismissal remedy - jurisdictional objection - not an employee – no intention to create legal relations – jurisdictional objection upheld – application dismissed.

The applicant, Mr Peter Hobbs, served as an officer for The Salvation Army for many years, beginning in 2009. He was dismissed from his role with The Salvation Army on 6 September 2023. On 26 September 2023, Mr Hobbs made an application to the Fair Work Commission (Commission) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (Cth) (the Act).

While The Salvation Army disputes that any dismissal was unfair, it also contends that Mr Hobbs was not an “employee” and therefore is not a person capable of obtaining a remedy for unfair dismissal under the Act. This decision addresses the question of whether Mr Hobbs is an employee or not, as that is a question that goes to the Commission’s jurisdiction to make any order for an unfair dismissal remedy.

In short, The Salvation Army’s objection raises two issues:

· First, was there any intention by the parties to create binding contractual relations between them; and
· Second, if so, was the contract between the parties a contract of employment?

For the reasons that follow, I am satisfied that there was no intention to create binding contractual relations between the parties and, therefore, it is unnecessary to answer the second question. It also follows that Mr Hobbs’ application for an unfair dismissal application must be dismissed.

Upon the matter being allocated to me, I issued directions for the filing of evidence and submissions. Mr Hobbs filed a witness statement on his own behalf. The Salvation Army filed witness statements for Colonel Wendy Walters (Head of Officer Personnel at The Salvation Army Australia), Colonel Kelvin Merrett (Divisional Commander of the Victoria Division of The Salvation Army Australia), Mr Frank Piscioneri (the Payroll Manager for The Salvation Army Australia), and Major Peter Walker (Area Officer for Southwest Victoria, for The Salvation Army Australia). At the hearing, The Salvation Army also tendered a letter, without objection, dated 29 November 2009 that had been inadvertently omitted from its witness evidence. Each statement was tendered and no witnesses were required for cross-examination.

The parties each filed written submissions, as well as their counsel making oral submissions, which I record were of significant assistance.

Factual background and findings

As Mr Hobbs’ written submissions succinctly state[1], The Salvation Army as an institution needs little introduction. While in more contemporary times in Australia, that observation is plainly correct regarding The Salvation Army’s charitable activities, its Christian core and structure is perhaps less well known.

As stated by Colonel Walters, The Salvation Army is an international Christian organisation which seeks to spread the message of Jesus Christ through is evangelical and social work. It is an organisation established by its…

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: [2024] FWC 159
Decision Date: 12 MARCH 2024

CaseChat Overview and Summary

In the case of Peter Hobbs v The Salvation Army, the applicant, Mr Hobbs, applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009. The Salvation Army, the respondent, objected to the application on the grounds that Mr Hobbs was not an employee and therefore not eligible for an unfair dismissal remedy under the Act. The central issue in this case was whether Mr Hobbs was an employee of The Salvation Army, which would determine the jurisdiction of the Fair Work Commission to hear the unfair dismissal claim. The decision hinged on two main questions: first, whether there was any intention by the parties to create binding contractual relations, and second, if so, whether the contract was an employment contract.

The Fair Work Commission, Deputy President Bell, examined the nature of the relationship between Mr Hobbs and The Salvation Army. Mr Hobbs had been associated with The Salvation Army for many years, starting in 2009 as an officer. His role involved various community-based duties, including family support and school mentorship. The Salvation Army, however, argued that Mr Hobbs' role was fundamentally different from that of a regular church-based officer, and his duties were more community-focused. The crux of the decision lay in interpreting the "Undertakings Entered Into By An Officer," which explicitly stated that there was no contract of service or employment between the parties.

Deputy President Bell considered the High Court's decision in Ermogenous v Greek Orthodox Community of SA Inc, which emphasized that the intention of the parties is crucial in determining whether a legally enforceable duty exists. The Court analyzed the circumstances surrounding the relationship, the status of the parties, and their mutual understanding. The 2007 Undertakings signed by Mr Hobbs clearly disclaimed any employment relationship, stating that there was no contract of service or employment between him and The Salvation Army.

Mr Hobbs argued that the undertakings were inconsistent with the reality of the arrangement, citing cases like Rose and Frank Company v J. R. Crompton and Brothers Limited, where the Privy Council held that a purported disclaimer of legal rights could be disregarded if the arrangement created complete legal rights. However, the Court found that the intention to disclaim any employment relationship was expressly and unambiguously stated in the 2007 Undertakings. The Court concluded that the parties did not intend to subject their agreement to the adjudication of secular courts, thereby dismissing Mr Hobbs' application for an unfair dismissal remedy.

Orders