Robert Santoro v Be Pay Australia Limited - [2024] FWC 848

[2024] FWC 848

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Robert Santoro
v

Be Pay Australia Limited

(U2023/13237)

DEPUTY PRESIDENT DOBSON

BRISBANE, 3 APRIL 2024

Application for relief from unfair dismissal – jurisdictional objection – not an employee – jurisdictional objection upheld – application dismissed

Background

On 30 December 2023, Mr Robert Santoro (Applicant) made an application to the Fair Work Commission (Commission) for an unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (the Act). The Applicant asserts that he was unfairly dismissed by Be Pay Australia Limited on 11 December 2023.

Be Pay Australia Limited (Respondent / Be Pay) is a barter trading exchange which uses the cryptocurrency, Barteos or BTE, as its digital currency. Be Pay solely represents Barteos in Australia and trades as “Barteos Australia”.[1] Be Pay objected to the application on the basis that it did not employ the Applicant and no employment relationship had ever existed between the Applicant and Be Pay. Rather, the Respondent asserts that the Applicant is one of the directors of Joinbte Pty Ltd (Joinbte), the company which entered into the “Barteos Australia Master Agent” agreement with Be Pay on 3 August 2022 (SDM Agreement). The SDM Agreement is dated 28 July 2022 and states it is a “contract of services”.

Prior to entering the SDM Agreement, the Applicant and the other director of Joinbte, Mr Wolfgang Hein, had entered into an agreement on similar terms to the SDM Agreement (the previous agreement). The previous agreement was dated 17 December 2021 and also stated that it was a “contract of services”. On 22 April 2022, an addendum to the previous agreement was agreed to by the parties, outlining new products and setting new commission rates.

The Respondent asserts that on 11 December 2023 it exercised its right to terminate the commercial contract between the Applicant and Be Pay due to on-going performance issues and allegations that arrangements were being made with an organisation that was a conflict of interest to Be Pay.[2] It is not in dispute that on 11 December 2023, the Director of Be Pay, Mr Peter Kritas, sent a letter to the Applicant and Mr Hein terminating the SDM Agreement.

The issue in dispute is whether an employment relationship existed between the Applicant and the Respondent at the time of dismissal and if so, whether that employment relationship was one of principal and independent contractor or employer and employee.

Directions were issued for the filing of submissions and any evidence on 13 February and 26 February 2024. The Applicant filed a response to the jurisdictional objection, an “outline of merits” and a list of documents including the previous agreement, a timeline of events and emails relating to the termination of the relationship. The Respondent did not file submissions and sought to rely on its Form F3 response, the SDM Agreement signed by the parties on 3 August…

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 848
Decision Date: 3 APRIL 2024

CaseChat Overview and Summary

The case of Robert Santoro v Be Pay Australia Limited [2024] FWC 848 involved a claim by Mr Robert Santoro against Be Pay Australia Limited for unfair dismissal under the Fair Work Act 2009. Mr Santoro alleged he was unfairly dismissed by Be Pay Australia Limited on 11 December 2023. Be Pay, a barter trading exchange using cryptocurrency Barteos, objected to the application asserting that Mr Santoro was never an employee but rather one of the directors of Joinbte Pty Ltd, which had a contractual relationship with Be Pay.

The central legal issue was whether Mr Santoro had an employment relationship with Be Pay that could be subject to unfair dismissal claims or if he was merely an independent contractor. Be Pay argued that Mr Santoro was a director of Joinbte Pty Ltd, a company that signed a "Barteos Australia Master Agent" agreement with them, characterising the arrangement as a "contract of services" and not employment. Mr Santoro, on the other hand, claimed he was an employee subject to unfair dismissal, pointing to his direction by Be Pay’s director regarding work hours and activities, provision of work materials, and payment through invoices.

The Deputy President of the Fair Work Commission, considering the contractual terms and the High Court's recent guidance on distinguishing employees from independent contractors, concluded that the contractual terms clearly defined the relationship as one of independent contractor. The court found that the contractual terms, which allowed Mr Santoro and his co-director to set their own hours, manage their own staff, and be paid through commission and cryptocurrency tokens, did not support an employment relationship. Additionally, the court rejected Mr Santoro's claim that the contract was a sham, finding the contractual relationship to be genuine and based on business-to-business dealings. Therefore, the court held that Mr Santoro was not an employee of Be Pay, and the Commission had no jurisdiction to hear his unfair dismissal claim.

The application for unfair dismissal was dismissed due to the lack of an employment relationship between the parties.

Orders