Samira Saro v Surveyors Registration Board of Victoria

[2015] FWC 1759

[2015] FWC 1759

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Samira Saro
v
Surveyors Registration Board of Victoria
(U2014/15200)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 31 MARCH 2015

Application for relief from unfair dismissal.

[1] On 17 November 2014, Ms Samira Saro (the applicant) lodged an application for an unfair dismissal remedy with respect to her alleged dismissal by the Surveyors Registration Board of Victoria (the Board) on 6 October 2014.

[2] On 28 November 2015 the Fair Work Commission (the Commission) advised Ms.Saro that her application was lodged outside the legislated time frame and a hearing to determine if time could be extended would be convened.

[3] On 28 November 2015 the Commission received the Employer’s Response. The Board objected to the application based on the minimum employment period, that it was not the employer, and that it was a small business.

[4] The matter was listed on 13 March 2015 for a jurisdictional hearing regarding an extension of time, that the Board was not the employer, that it was a small business, and whether a minimum employment period applied. At the hearing the employer pressed the submission that the applicant was not an employee of the Board, and was not dismissed. It conceded the extension of time. The submission that the Board was a ‘small business’, while part of the Victorian Government, and represented by a public servant with the relevant Government Department, was on its face somewhat bizarre. I also note that the definition of ‘small business’ in s.23 of the Act requires ‘associated entities’ to be taken into account. However, it was not necessary to deal with it further.

[5] The applicant was self represented, had received pro-bono legal advice, and had a support person to assist with her hearing loss. I took care to take Ms.Saro through the various employer submissions and documents, to enable her to respond to each. The applicant did respond.

Submissions

[6] Submissions were received by Ms.Saro 1 and the Board2. I have taken account of all submissions and evidence put to me.

Decision

[7] The Full Bench decision in Abdalla v. Viewdaze Pty Ltd 3, which I provided to the parties,conveniently summarises a number of High Court authorities on the issue of whether or not an employment relationship exists. I deal with each of the relevant issues in turn.

The contract and the manner of engagement, working and payment

[8] Ms.Saro worked on an hourly basis, and the number of hours and regular pattern of work was not guaranteed 4, although there was some consistency of the number of hours worked as shown by the Randstad time sheet5. On 13 March 2014 Ms.Davis of the Surveyors Registration Board (the Board) formally accepted a proposed contract for the provision of services sent by Ranstad6. The contract stated that notice of termination would be given by Randstad, although in this case it appears that the Board formally terminated her7. Ms.Saro’s evidence was that the formal engagement was done by Randstad when she was contacted by them on 7 March, although she had discussed the position with a person at the Board beforehand8. The various emails are attached to Ms.Saro’s submissions9. Randstad for example provided the ‘PD’ to Ms.Saro on 7 March 2014, presumably the position description, and on 11 March 2014 told her they were waiting to hear from the Board about and ‘interview/start date’. On the same day Randstad advised Ms.Saro that ‘This is the same position that you interviewed for last time and the client specifically asked for you. Please given me a call on ... to discuss further’. Ms.Saro sent Randstad her ‘current resume’ on 11 March10.

[9] The extension of Ms.Saro’s Ranstad contract was undertaken partly through the Board asking for an extension of the Ranstad contract: ‘Thanks Sam. I will notify Randstad accordingly’. 11 Ms.Davids gave evidence that she engaged Ms.Saro for the Board through Randstad, that Randstad was paid for Ms.Saro’s services on invoice, and that Ms.Saro’s placement with the Board was terminated by agreement with Randstad. She also gave evidence that the Board had no employees12.

[10] Ms.Saro said that Ranstad employed her in 2009, she kept in touch with them until 2010-2011, and she asked them for another job, although later contact was limited 13.

[11] The Surveyors Board was sent invoices by Randstad for the work performed by Ms.Saro 14. Ranstad time sheets were filled in by Ms.Saro15. A summary of the time sheets for Ms.Saro’s work with Randstad was provided16. An outline of the terms of engagement provisions used by Ranstad were provided17. Ranstad provided a letter confirming that Ms.Saro was employed by it for the period 12 March 2014 to 6 October 201418. The standard contract of employment used by Randstad was provided and it was said that ‘Randstad hold the signed copy’19. The contract provided that she was employed as a contractor on a casual/temporary basis, employment on an assignment basis, each shift being a new contract of employment. Her employment with Randstad ends at the end of every shift20.

Control

[12] The Board, it appears, controlled the work of Ms.Saro.

Mode of remuneration

[13] As set out above, Ms.Saro was paid by Randstad on presentation of time sheets to them, and Randstad invoiced the Board for the amounts.

Business name and ABN

[14] Ms.Saro did not have a business name and ABN 21.

Other indicia

[15] Ms.Saro did not perform work for others, did not have a separate place of work or advertise her services to the world at large, did not delegate or subcontract. The employer could not suspend or dismiss, this was expressly to be done by Randstad. Ms.Saro presented to the world at large as an emanation of the business. It does not appear that the Board deducted income tax from amounts paid to Ms.Saro because it paid no such amounts. The Board paid these amounts. Ms.Saro was not paid holidays or sick leave, had no goodwill or saleable assets, and did not spend remuneration on business expenses.

Ongoing employment

[16] Ms.Saro agreed that she was never given a written offer of employment with either the Board or the Department of Transport Planning and Local Infrastructure in which the Board was located, or was never offered a job 22. I accept that Ms.Saro was not offered ongoing employment23. At most this was considered and discussed but never implemented, as Ms.Saro conceded herself24. The Board wrote to Ms.Saro on 27 August 2014 stating that it was starting the process of establishing a permanent job which Ms.Saro could apply for25. This is an indication that both Ms.Saro and the Board understood that the current relationship was not an ongoing employment relationship.

Conclusion

[17] This was a labour hire arrangement between Randstad and the Board, for the provision of services by a contractor in this case Ms.Saro. On the material before me Ms.Rand was not an employee of the Board. She was an employee of Randstad. She was not dismissed by the Board and her application against the Board must therefore be dismissed (ss.385-386 of the Fair Work Act 2009). An order dismissing the application is contained in PR562633.

DEPUTY PRESIDENT

Appearances:

Ms S Saro, the applicant

Mr B Ziegenbein (Department of Economic Development), Ms Anita Davids (Surveyors Registration Board of Victoria) and Mr C Henry (Department of Environment, Land, Water and Planning) for the respondent

Hearing details:

2015

Melbourne

13 March

 1   Exhibit Saro 1, Saro 2

 2   Exhibits S1, S2

 3   PR927971, 14 May 20013, Lawler VP, Hamilton DP, Bacon C

 4   Exhibit S2, Employer Submission in Reply

 5   Exhibit S1, document 4

 6   Exhibit S1, Document 1

 7   Exhibit Saro 1, p.2

 8   Exhibit Saro 1, p.1

 9   Exhibit Saro 1, Annexure 1.2

 10   Exhibit Saro 1, Annexure 1.2, 1.3

 11   Exhibit Saro 1, Annexure 2.2, email of 2 September 2014

 12   Exhibit S1

 13   PN391

 14   Exhibit S1, Document 2

 15   Exhibit S1, Document 3

 16   Exhibit S1, Document 4

 17   Exhibit S1, Document 5

 18   Exhibit S1, Document 6

 19   Exhibit S1, Document 7

 20   Exhibit S1, Employer Submission, Document 7, Contract of service terms and conditions

 21   Exhibit S2

 22   PN385

 23   Exhibit S2

 24   PN448-451

 25   Exhibit Saro 1, Annexure 2

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<Price code C, PR562004>