Roberto Diaz v Sergej Janez
[2024] FWC 1726
•1 JULY 2024
| [2024] FWC 1726 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.365—General protections
Roberto Diaz
v
Sergej Janez
(C2024/2401)
| COMMISSIONER TRAN | MELBOURNE, 1 JULY 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection (applicant not dismissed – not an employee) – jurisdictional objection dismissed – applicant found to be an employee
This is the written reasons of a decision delivered ex tempore on 1 July 2024.
Section 365 of the Act provides that a person who has been dismissed may apply to the Commission to deal with the dispute. When a person (an applicant) applies to the Commission under s 365, the Commission’s role is to try to resolve the matter, and it usually does so by holding a conference. However, if a respondent denies that they employed the applicant, then the Commission must first determine whether, in fact, the person was an employee.
Mr Roberto Diaz says that he was employed by Mr Sergej Janez as a cleaner from November 2023 until 4 April 2024. He says that during his employment, Mr Janez supplied all tools and equipment and instructed him on how to perform the work. He also says that if anything went wrong, or he broke something while cleaning, Mr Janez did not fully pay him. On 4 April 2024, Mr Diaz’s work with Mr Janez ended. Mr Diaz says that he was dismissed from his employment, because he asked to be paid correctly, completely and on time. Mr Diaz also raised other matters including discrimination on the grounds of race and sex.
Mr Janez says that Mr Diaz did not start work until December 2023. He argues that he terminated Mr Diaz’s contract due to performance issues. Mr Janez says that Mr Diaz cannot make this application as Mr Diaz was never an employee and therefore Mr Janez could not have dismissed Mr Diaz.
I have considered the written materials provided by Mr Diaz and Mr Janez, and the oral evidence and arguments made by Mr Janez, Mr Diaz and Mr Diaz’s sister, Ms Elizabeth Diaz. I give no weight to the statements of Ms Jana Hotova and Ms Zoe Evans, as they did not attend the hearing to give evidence.
In this matter, there is no written contract. I must therefore consider what were the parties’ rights and obligations at the time that the contract was entered into to decide whether there was an employment relationship. I have also considered how the relationship was worked in practice to ascertain the contractual terms.[1]
There was limited evidence, but I have considered all the relevant factors, and I find that Mr Diaz was an employee of Mr Janez.
I have not relied on the following matters to determine whether Mr Diaz was an employee of Mr Janez:
- First, the label that the parties use. Mr Janez says it was a contract because the job advertisement referred to ‘contract/temp’. The characterisation of the legal relationship is a question for the courts or this Commission.[2]
- Second, that there was no guarantee of work: this is a matter than can also be a feature of casual employment.[3]
- Third, that Mr Diaz may have worked for other people during the time that he also worked for Mr Janez. The parties’ evidence about this was contradictory, but I do not give this factor much weight. Again, this is because working for other people or businesses can also be a feature of casual employment.[4]
- Last, payment arrangements and who was responsible for taxation and superannuation. These matters may be relevant, but the way such payments are structured may also be an attempt to avoid the obligations of employment. Both parties gave evidence that payment was made after Mr Diaz supplied a tax invoice with his ABN to Mr Janez. I take this matter into account, but I do not consider it conclusive of the legal characterisation of the relationship.
I have focused on two factors to reach my conclusion that Mr Diaz was an employee of Mr Janez: first, the degree of control exercised by Mr Janez; and second whether Mr Diaz was working in Mr Janez’ business or conducting his own business.[5]
I find that Mr Janez exercised a significant degree of control over where, when and how Mr Diaz was to perform his work. This was demonstrated by Mr Janez trialling Mr Diaz for the work and saying that the first 3 months was a probationary period. In addition, Mr Janez considered that he had the ability to discipline Mr Diaz for his presentation at work as well as his performance. Last, Mr Janez supplied all tools and equipment to Mr Diaz so he could complete the work.
I find that Mr Diaz was working in Mr Janez’s business, and was not conducting his own business. As Mr Diaz did not drive, he went to Mr Janez’s home and worked with Mr Janez at each of the clients’ homes, travelling from site to site together with Mr Janez. Mr Diaz also assisted Mr Janez to advertise and promote his business by delivering fliers.
As I have found that Mr Diaz was an employee of Mr Janez, it follows that he can be dismissed by Mr Janez. I now intend to proceed to a conference in an effort to resolve this matter.
COMMISSIONER
Appearances:
R Diaz for the Applicant
S Janez for the Respondent
Hearing details:
1 July 2024
Microsoft Teams
[1] Realestate.com.au Pty Ltd v Hardingham [2022] HCA 39; 406 ALR 678 at [21]–[22] per Kiefel CJ and Gageler J; and EFEX Group Pty Ltd v Bennett [2024] FCAFC 35 at [9].
[2] Nawaz v Rasier Pacific Pty Ltd T/A Uber BV[2022] FWC 1189 at [51], principle 6.
[3] Nawaz at [51], principle 7.
[4] Nawaz at [51], principle 7.
[5] Characterisation of an employment relationship hinges on two considerations, and each involves question of degree per CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1, in particular Kiefel CJ, Keane and Edelman JJ at [36]-[39].
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