FEDERAL COURT OF AUSTRALIA
Rizk v Basseal [2024] FCA 647
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- AGLC
- Rizk v Basseal [2024] FCA 647
- Case
- [2024] FCA 647
- Decision Date
CaseChat Overview and Summary
The legal issues addressed by the court included the appropriate standard of review for appeals involving the determination of employment status, the principles applicable when no written contract exists between the parties, and the status of the multifactorial test derived from the case of Hollis v Vabu Pty Ltd. The court had to determine whether the primary judge had erred in applying these principles and whether the appeal should be dismissed or allowed.
The court found that the primary judge had correctly applied the principles and the multifactorial test, and there was no error in the primary judge’s reasoning or findings. The court held that the primary judge had correctly identified the contractual rights and obligations between the parties and had properly characterised the relationship. The court also noted the importance of considering all relevant circumstances, including the parties' words and conduct at the time of contract formation, to ascertain the terms of the contract. The court concluded that the appeal should be dismissed and that the interlocutory application for summary dismissal should also be dismissed, with no order as to costs.
In summary, the court dismissed Mr Rizk’s appeal and the interlocutory application filed by Mr Basseal and Mr Boustany, affirming the primary judge's decision that Mr Rizk was not an employee of BB Dundas. The court found no merit in the appeal and made no order as to costs for either party.
Orders
Orders of the court
1. The appeal be dismissed with no order as to costs.
2. The respondents’ interlocutory application filed on 14 March 2024 be dismissed with no order as to costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The primary judge was not satisfied that an employment relationship existed and, as a result, the application failed: PJ [51]. The primary judge noted that “no alternative contractual matter” had been pleaded by Mr Rizk, meaning the Court could not determine whether or not in fact there may have been work performed in respect of which payment was not made: PJ [51]. The primary judge further stated that, even if he had been satisfied that an employee-employer relationship existed, there would have been considerable difficulty in finding accessorial liability on the part of Mr Boustany: PJ [52]. E. CONSIDERATIONE.1 Overview of Mr Rizk’s arguments on appeal Mr Rizk’s arguments in support of his grounds of appeal proceeded with scant regard to the principles applicable to the determination of an employment relationship. The arguments proceeded on an application of the “multifactorial test” said to arise from Hollis. In particular, as is apparent from each of Grounds 1 and 2, Mr Rizk’s arguments sought to give prominence to the indicia of control and the alleged absence of certain documentary and taxation arrangements between the parties as being determinative. In dealing with these arguments, it is first necessary to deal with questions of principle and the contractual relationship between the parties before turning to the determination of Mr Rizk’s grounds of appeal.E.1 The principles for determining whether there is an employment relationship The decisions of the High Court in Personnel Contracting and ZG Operations Australia Pty Ltd v Jamsek[2022] HCA 2; (2022) 275 CLR 254 have laid down the principles to be applied in the determination of the existence of an employment relationship where the rights and duties of the parties are “comprehensively committed to a written contract” and that contract is not a sham: Personnel Contracting at [43]-[44]. However, it does not follow that in cases where there is no written contract, or it is partly written, that the identification of the contract and its terms have no role to play in the determination of the essential question as to whether the relationship is one of employment. As Lee J stated in EFEX Group at [52], the decisions of the High Court in WorkPac Pty Ltd v Rossato [2021] HCA 23; (2021) 271 CLR 456, Personnel Contracting and Jamsek make plain that the “key determinant of the character of any given work relationship is to be found in the terms of the contract between the parties”. Where there is no written contract, the identification of the parties’ contractual rights and duties must proceed somewhat differently but the fundamental task remains the same as where a written contract exists: the parties’ contractual rights and obligations are to be ascertained and characterised: EFEX Group at [7] (Katzmann and Bromwich J) citing Personnel Contracting at [177] (Gordon J, with Steward J agreeing) and Chiodo v Silk Contract Logistics [2023] FCA 1047 at [9] (Kennett J); see also EFEX Group at [52]-[56] (Lee J). The terms of such a contract must be determined on the application of orthodox principles. The terms may be inferred from all the circumstances, including by reference to the parties’ words and conduct at the time of the formation of the contract, a course of dealing or implied where necessary by reason of business efficacy: EFEX Group at [9] (Katzmann and Bromwich J) and at [56]-[59] (Lee J), both citing Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39; (2022) 406 ALR 678 at [21]-[22] (Kiefel CJ and Gageler J). In certain circumstances, it may be permissible, within limits, to have regard to post-contractual conduct where it is admissible in seeking to resolve what was said in the formation of the contract, to infer the existence of the contract from the acts and conduct of the parties, or to identify its necessary terms: EFEX Group at [56]-[59] (Lee J).