Peter S P Zhou v Aims Real Estate
[2009] FWA 1135
•27 NOVEMBER 2009
[2009] FWA 1135 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
v
Aims Real Estate
(U2009/11456)
COMMISSIONER LARKIN | SYDNEY, 27 NOVEMBER 2009 |
Termination of employment – jurisdictional argument – applicant not an employee of respondent.
[1] This decision concerns a jurisdictional objection lodged by Aims Real Estate (the respondent) on 7 September 2009 to dismiss the application for unfair dismissal remedy lodged in Fair Work Australia (FWA) on 21 August 2009 by Mr Zhou (the applicant).
[2] Mr Zhou’s application under s.394 of the Fair Work Act 2009 (the Act) alleged that his termination of employment by the respondent on 7 August 2009 was unfair. Mr Zhou’s application stated that he was employed by the respondent on 20 October 2008.
[3] On 7 September 2009 the respondent lodged Form F3, Employer’s Response to Application for an Unfair Dismissal Remedy, which stated:
“Peter Zhou is not employee (sic) of AIMS REAL ESTATE. He held his own licence and ran the business for himself. He agreed to generate business for AIMS for commission only. His income came from all his successful sales.”
[4] The matter did not settle at conciliation and was listed for hearing the jurisdictional objection on 6 November 2009. Directions were issued to the parties to file and serve material upon which they sought to rely in respect to the jurisdictional objection.
[5] On 27 October 2009 the respondent lodged Form F4, Objection to Application for Unfair Dismissal Remedy. The respondent stated:
“The applicant Peter Zhou was employed on a contract basis and on commission basis only.
His remuneration was solely depended (sic) upon sales and not listings as he claims.
Our records confirm that there have been no property sales emanated from listings generated by him.
Copy of the contract agreement entered into with Mr. Zhou is provided herewith.”
[6] On 30 October the applicant lodged a bundle of documents comprising of advertisements and a number of Selling Agency Agreements.
[7] On 6 November 2009 Mr J Militadis, Risk and Compliance, Head of Credit and Support, appeared on behalf of the respondent with Mr J Wang, Sales Manager. Mr Wang gave oral evidence during the proceedings. Mr Zhou, the applicant in the substantive matter, also gave oral evidence in the proceedings.
CONSIDERATIONS
[8] Section 382 reads:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
[9] To apply for an unfair dismissal remedy under s.394 of the Act the applicant must, amongst other factors, be a person protected from unfair dismissal. FWA must be satisfied that the person at the time of being dismissed was a person protected from unfair dismissal. Under s.382 of the Act, a person is protected from unfair dismissal if that person at that time was, amongst other factors, an employee. If the relationship between the parties is not one of employee and employer but some other type of relationship, the applicant is unable to make an application for an unfair dismissal remedy. Pursuant to s.396 of the Act, this issue must be determined prior to any consideration of the merits.
[10] Having regard to the procedural requirements of Division 5 of Part 3-2, I sought the views of the parties as to whether they sought a conference or a hearing. After considering those views and whether a hearing would be the most effective and efficient way to resolve the matter I decided that is was appropriate in the circumstances to hold a hearing in relation to the matter.
[11] Having considered all the material before me I am not satisfied that the applicant, Mr Zhou, is a person that was protected from unfair dismissal at the time of dismissal as I am not satisfied that he was an employee of the respondent company for the following reasons.
[12] The parties made an agreement on 20 October 2008. That agreement was between AIMS Real Estate Network Pty Ltd and the Project General Manager, Mr Zhou. That agreement set out the duties of the Project General Manager and AIMS and for the Term and Termination of the agreement.
[13] Mr Zhou was responsible, amongst other things, to market and promote the services of the respondent and, as submitted by Mr Miltiadis, to contact developers to obtain the listing of properties that AIMS could market and sell.
[14] Mr Wang’s evidence was that Mr Zhou was a contractor and not an employee on salary. He stated that Mr Zhou, according to the agreement, was to receive commission on sales. His evidence was that as there were no sales Mr Zhou had not received any commission. Mr Wang’s evidence was that there was no set remuneration but payment by commission only based on sales. There was no obligation to work on a daily basis or to report to work at certain hours. Mr Zhou had been absent from November 2008 to April 2009. Mr Wang did not know where Mr Zhou was nor had approval for the absence been sought by Mr Zhou. Mr Wang stated that the respondent did not have an obligation to pay taxation on behalf of Mr Zhou and that no monies had been paid to Mr Zhou. Mr Wang stated that there was no direction to Mr Zhou to contact developers “just collect the information, if he can provide the opportunity, the business opportunity to us”. 1 Mr Wang’s evidence was that Mr Zhou operated his own business.
[15] In cross examination Mr Wang acknowledged that the respondent provided to Mr Zhou equipment and stated “Yes. We provide some – the working environment is an open office for Peter to come into the office to use the facility in the office including the internet and computer and also telephone, and during that time he can come to the office any time because the office is always open for the sales people and including the contractor in order to get the listing, because some people they need to contact developer, we need to provide this facility to them, yes”. 2
[16] In his evidence Mr Zhou stated that he had not received any remuneration from the respondent.
[17] In relation to his absence from November 2008 to April 2009 Mr Zhou agreed that he did not ask for approval but “I just show them I got overseas buyer”. 3The respondent did not pay for the travel or any allowances and Mr Zhou had not asked to take annual leave or any other form of leave.
[18] From his evidence, Mr Zhou did not have specific hours of work nor days upon which he was required to perform work. He stated that he did attend sales meetings. Mr Zhou stated:
“Yes. I just mention it very earlier, I said that by law I am the sales certificate holder, have to be got paid, all right, paid a third of the ages (wages), not only a commission only, and also by agreement my solicitor fully believe this agreement is very confusing but it looks like 70 per cent is employee, 30 per cent is by the contract. This is according to this agreement, so that’s it, this my concerning. I have to mention something. Maybe you think it’s nothing to do with this case. I do think it’s very, very, very close about this case. That’s because you can see the company, you know, is very good reputation or good…or not. All the people, salesperson are the newspapers, a little bit trendy, but they only have four persons to get paid wages. This is unusual.” 4
[19] In cross examination, Mr Zhou acknowledged that no one had forced him to sign the agreement with the respondent.
[20] Further in cross examination, Mr Miltiadis put to Mr Zhou that the Selling Agency Agreement, attached to the material filed by Mr Zhou, at the last and signing page of the agreement, dated 7 November 2008, reflects the company Golden Bird Australia. Mr Zhou agreed that this was his company “a small business, it’s a personal things”. 5Mr Zhou stated that “it’s no running for long time”.6
[21] In submissions, Mr Miltiadis stated:
“I just want to state our position that the employment of Mr Zhou was purely on a contract basis and remuneration was based on introduction of business and sales, supported by sales. Mr Zhou was not and (sic) exclusive contractor to Aims, and the documents provided clearly support that. It (sic) was free, our (sic) free agent to introduce business to other companies if he wished so. His absence from Aims for a period of five to six months clearly supports that. There was no approach in terms of a formal consent or approval for him to take leave of absence. There is absolutely no evidence to support that Aims has received payment for any sales that are connected directly or indirectly as a result of business introduced to Aims by Mr Zhou.
There was no formal control over Mr Zhou in terms of his hours of employment, there was no promises made in terms of remuneration other than commissions payable on sales. He was not given any duties in terms of staff control or anything of that nature. He was a free agent to come and go, he was free to work from home if he wished, and his remuneration was purely based on a contract and sales approach. There is no evidence to support that Aims is obligated in any way to remunerate Mr Zhou for the time that he spent with Aims or whilst he was away.” 7
[22] Mr Zhou submitted:
“Just to mention as before, just repeat it. By this agreement he has 70 per cent is employment here, 30 per cent is the contractor. He do supply me such equipment and information I was given already. So I believe that this employment agreement.” 8
[23] The agreement signed by the parties, attached to the employer’s objection to the application, 9 is anything but a satisfactory document/contract, however, it is an agreement that the parties signed. I am not persuaded that in signing that document Mr Zhou was under the impression that he was an employee of the respondent company. Further, in the dealings between the parties I am not persuaded that Mr Zhou was an employee of the respondent company under contract for work to be performed. During the entire approximate 10 months of the relationship between the parties there was no control exercised by the respondent over Mr Zhou, nor evidence that the respondent had a right to exercise control. Mr Zhou was free to come and go as he chose. I am not persuaded that Mr Zhou sought any wages/salary from the respondent during this period and no monies were paid to him. Mr Zhou travelled overseas for a period of approximately five months without approval from the respondent nor did he seek approval to be absent. Further, I am not persuaded that the respondent had the right to the exclusive services of Mr Zhou. In my view Mr Zhou was a contractor providing to the respondent his services for a fee and/or commission.
[24] The real issue in this case is that Mr Zhou is of the view that he was to be paid commission for the listings he obtained. The respondent’s view is that commission is paid to Mr Zhou on the basis of sales. I am not satisfied that at any time in the relationship did Mr Zhou consider and believe himself to be an employee of the respondent company.
[25] On the material before me I am satisfied that Mr Zhou cannot bring an application to FWA pursuant to s.394 of the Act as Mr Zhou is not a person protected from unfair dismissal as he is not an employee. Mr Zhou’s application is dismissed. An order reflecting this decision will issue separately.
COMMISSIONER
Appearances:
J. Militadis with J. Wang, on behalf of the respondent.
P. Zhou, on his own behalf.
Hearing details:
2009.
Sydney:
November, 6.
1 PN248
2 PN314
3 PN418
4 PN426
5 PN521
6 PN524
7 PN552; PN553
8 PN557
9 Form F4
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