Rizk v BB Dundas Pty Ltd

Case [2023] FedCFamC2G 583

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Rizk v BB Dundas Pty Ltd [2023] FedCFamC2G 583  

File number(s): SYG 2059 of 2020
Judgment of: JUDGE D HUMPHREYS
Date of judgment: 7 July 2023 
Catchwords: INDUSTRIAL LAW – Fair Work – Building and Construction General On-Site Award 2010 – whether employee or independent contractor – whether the first and second respondents are accessorily liable.  
Legislation:

Fair Work Act 2009 (Cth) ss

Building and Construction General On-Site Award 2010  
Cases cited:

Ace Insurance Limited v Trifunovski (2013) 209 FCR 146

Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1

Hollis v Vabu Pty Ltd (2001) 207 CLR 21

Jin v Premium Travel Pty Ltd [2023] FedCFamC2G 22

Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 13

Division: Division 2 General Federal Law
Number of paragraphs: 53
Date of last submission/s: 30 June 2023
Date of hearing: 8 June 2023
Place: Sydney
Solicitor for the Applicant: Mr Kutasi
Solicitor for the Respondents: The First and Second Respondents appeared in person

ORDERS

SYG 2059 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

RIZK RIZK

Applicant
AND:

BB DUNDAS PTY LTD (ACN 605797457) AS TRUSTEE FOR THE BB DUNDAS TRUST (ABN 65 355 767 782)

First Respondent

DANNY BASSEAL

Second Respondent

HABIB BOUSTANY

Third Respondent

order made by:

JUDGE D HUMPHREYS

DATE OF ORDER:

7 July 2023

THE COURT ORDERS THAT:

1.The application is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE D HUMPHREYS

INTRODUCTION

  1. The applicant is a Carpenter. The applicant alleges that between at least June and August 2018, he was employed by the first respondent on a casual daily basis to undertake carpentry fit out to a building under construction in Dundas NSW. The applicant claims that he was underpaid by reference to the Building and Construction General On-Site Award 2010 in that, he was paid a flat rate of $400.00 per day cash for each day worked.

  2. The applicant seeks orders in relation to the alleged underpayments in an amount of $7,991.75 plus pecuniary penalties for the alleged breaches of the Fair Work Act 2009 (the Act), together with interest and costs.

  3. The first and second respondents claim that the applicant was not employed, but rather, he was an Independent Contractor

  4. The First Respondent has been de-registered by the Australian Securities and Investment Commission (ASIC) on 28 September 2020. The applicant now seeks to proceed against the second respondents, Mr Basseal and Mr Boustany on the basis of accessorial liability to…

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Details
AGLC
Rizk v BB Dundas Pty Ltd [2023] FedCFamC2G 583
Case
[2023] FedCFamC2G 583
Decision Date

CaseChat Overview and Summary

Rizk v BB Dundas Pty Ltd involved the applicant, Rizk, seeking to establish that he was an employee of BB Dundas Pty Ltd (the first respondent) and to claim unpaid wages. The case was heard in the Federal Circuit and Family Court of Australia. Rizk based his claim on the premise that he had performed various carpentry and concreting tasks for the first respondent, under the direction of Mr Boustany, an individual who was not an employee or officer of the company. Rizk alleged that he had worked at various sites, was paid cash for his work, and claimed that he had not been paid in full for the work completed.

The central legal issue the court had to decide was whether Rizk could establish an employee-employer relationship with BB Dundas Pty Ltd, thereby entitling him to the unpaid wages. Rizk needed to demonstrate that he was an employee under the common law definition, which involves proving the existence of a contract of service rather than a contract for services. Additionally, the court needed to assess whether Mr Boustany could be held vicariously liable for BB Dundas Pty Ltd, despite not being an officer or employee of the company.

The court examined the evidence presented by Rizk, including his affidavits and a notebook detailing the days he worked and the payments he received. The court found that Rizk had not provided sufficient evidence to establish that he was an employee of BB Dundas Pty Ltd. The court noted inconsistencies in Rizk's records and the lack of formal agreements or contracts. Furthermore, the court found it difficult to establish accessorial liability on behalf of Mr Boustany, as he was not an officer or employee of the company. As a result, the court concluded that Rizk's application must be dismissed.

In conclusion, the court dismissed the application, finding that Rizk had not satisfied the burden of proving he was an employee of BB Dundas Pty Ltd. Consequently, his claim for unpaid wages was denied.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the reasons set out below, the applicant has not satisfied the Court that he was an employee. In those circumstances, the application must be dismissed.THE APPLICANT’S EVIDENCE The applicant was the only witness in his case. He relied on two Affidavits, the first, affirmed on 16 June 2021. In that Affidavit the applicant deposes that he did not have any formal trade qualifications, however, that he has a specialty in concreting and carpentry. The applicant provides those types of services to other licensed building tradesmen. The applicant was introduced he was introduced to Mr Boustany by his brother, in around late 2016. In or around March 2018, Mr Boustany asked the applicant if he could do some work at Mr Basseal’s place, at Hazel Place in Dundas. For each day that he attended, he was paid $400.00 in cash by Mr Boustany. In late May 2018, the applicant deposes that he received another telephone call from Mr Boustany to undertake carpentry fit out work at a premises in Dorahy Street, Dundas. Around the beginning of June, the applicant attended with Mr Boustany upon Kelso doors at Wentworthville, where they jointly went shopping for doors, door handles skirting and architraves. These items were paid for by Mr Boustany. Over the next three months, the applicant claims he regularly worked at Dorahy Street, installing and fitting doors, handles, skirting and architraves to both houses a the duplex type construction. While working on the site, the applicant claims that Mr Boustany was almost always on-site supervising tradesmen. He also assisted Mr Boustany on one occasion with landscaping of the property Around 22 June 2018, the applicant claims to have a conversation with Mr Basseal asking to be paid. In response, Mr Basseal gave him $500.00 in cash and promised to give him more cash when they had it. The applicant claims that his work was completed on 22 August 2018, and in that time, he was paid a total of $4765.00 in cash by either Mr Boustany or Mr Basseal, with the exception, where on one occasion when he was paid $200.00 by a third person. The applicant claims that he recorded the days that he worked together with the amounts that he received in a notebook which was tendered before the Court as Exhibit 3. This notebook records less amounts having been received, owing a total $4105.00. As to the days worked, it commences with an entry of up to Friday 1 June 2018, 18 days worked, and then records various days worked in June and August 2018. It is to be noted that on some days the applicant records that he worked half a day, for example on Monday, 4 June 2018. He then worked on 6, 7, and 8 June 2018, but did not then work until 1 August 2018. The notebook shows that the applicant worked on 1 and 2 August 2018, followed by a gap until 7 to 11 August 2018, and then 13 to 22 August 2018. In the last two days, the applicant only worked half days. The diary concludes with an entry that the applicant performed work that he says, totalled $11,650.00 for which he received $4765.00 in payment, leaving an unpaid amount owing of $6885.00.

Decision

Reasons for decision

The Court also notes that even if it had been satisfied that an employee-employer relationship existed between the applicant and the first respondent, the Court would have had considerable difficulty finding accessorial liability on behalf of Mr Boustany, noting that he was not an officer or employee of the first respondent. CONCLUSION Accordingly, the application is dismissed.

Ratio Decidendi

Legal Principle Established

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