Photini Drivas v Hypoxi Body Shaping of Kew Pty Ltd

[2012] FWA 10715

[2012] FWA 10715

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365—General protections

Photini Drivas
v
Hypoxi Body Shaping of Kew Pty Ltd
(C2012/5152)

COMMISSIONER BISSETT MELBOURNE, 20 DECEMBER 2012

Application to deal with contraventions involving dismissal.

[1] On 31 August 2012 Mrs Photini Drivas (the Applicant) made an application to Fair Work Australia (FWA) claiming that she had been employed under a sham arrangement in contravention of s.357 of the Fair Work Act 2009 (the Act). Mrs Drivas says she was employed by Hypoxi Body Shaping of Kew Pty Ltd (the Respondent). In her application she says that she was dismissed on 2 July 2012.

[2] Mr Sloane of the Respondent says that the Applicant was a contractor and her services were terminated on 30 June 2012. The Respondent argues that the Applicant was a contractor and not an employee and that, even if she were an employee, her application under s.365 of the Act was made outside of the 60 day time limit for making such applications imposed by s.366 of the Act.

[3] If Mrs Drivas was an employee (which she claims she was) there is no dispute that she was dismissed within the meaning of s.365 of the Act but she details in her claim no provision of Part 3-1 of the Act that was breached in relation to the dismissal.

[4] Attempts to conciliate the matter (as either required under s.368 of the Act or available under s.374 of the Act) failed to resolve the matter in dispute and failed to clarify with any certainty the claim made by the Applicant. Having said this it was abundantly clear in the proceedings before me that there is a disagreement between the Applicant and Respondent as to what agreement may have been reached for selling the business (Hypoxi Body Shaping of Kew Pty Ltd) to the Applicant but this is not something that comes within the jurisdiction of Fair Work Australia.

[5] As the Applicant claims she has been dismissed and the Respondent alleges that her application was made out of time a hearing was held to determine if an extension of time should be granted. In her submission on that matter the Applicant indicated that she had concluded that her application should be amended to an unfair dismissal application. 1

[6] During the extension of time hearing however the Applicant clarified that she did not intend to alter her application to unfair dismissal and continued to press her application that she was on a sham arrangement in breach of s.357 of the Act. 2

[7] The sham arrangements provisions of the Act (as are relevant to this application) state:

Division 6—Sham arrangements

357 Misrepresenting employment as independent contracting arrangement

(1) A person (the employer) that employs, or proposes to employ, an individual must not represent to the individual that the contract of employment under which the individual is, or would be, employed by the employer is a contract for services under which the individual performs, or would perform, work as an independent contractor.

Note: This subsection is a civil remedy provision (see Part 4-1).

(2) Subsection (1) does not apply if the employer proves that, when the representation was made, the employer:

(a) did not know; and

(b) was not reckless as to whether;

the contract was a contract of employment rather than a contract for services.

[8] Clearly it is a breach of this provision to misrepresent a contract of employment as a contract for services. Whether such a breach has occurred with respect to the Applicant is not a matter for me to determine. Should the Applicant believe that this provision applies to her circumstances she can make an application to a court of competent jurisdiction. She does not require the approval of, or a certificate from, FWA to do so.

[9] Whilst I appreciate that the Applicant says she was dismissed on 2 July 2012 this is not relevant to the application she may make to an appropriate court with respect to s.357.

Conclusion

[10] On the basis of the material before me and the application of Mrs Drivas that she was on a sham arrangement I find I do not need to issue a certificate under s.369 of the Act. As such whether the application was made within or outside the 60 day time limit for making an application under s.365 is not a matter I need to decide.

[11] The Applicant is free to pursue any other actions she considers appropriate including action in an appropriate court seeking some remedy for the breach of s.357 she says occurred.

[12] I would add however that, were I required to determine if an extension of time should be granted to make the application, I would find the application was made within the required time period. This is so because, even though the Respondent says it ceased paying the Applicant after 30 June 2012, I accept that the Applicant was not told until 2 July 2012 that her services were no longer required. Both Mr and Mrs Sloane of the Respondent were on holiday at the time they say they ceased the engagement of the Applicant. The Applicant was advised by email from Nic Bostock on 2 July 2012 that ‘[f]urther to our conversation today, Hypoxi Body Shaping of Kew will not be retaining your management services effective today 2/7/12.’ [emphasis in email] This email was referred to by the Applicant at the hearing on 12 December 2012 and was subsequently provided to my chambers as required of the Applicant.

[13] This email would indicate that the date of cessation of the Applicant’s engagement was 2 July 2012. The application was made on 31 August 2012, within the 60 day period.

COMMISSIONER

Appearances:

P Drivas, on her own behalf.

J Sloane, of the Respondent.

Hearing details:

2012.

Melbourne:

December 12.

 1   Exhibit D1.

 2   Transcript PN192-4, 317-20.

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